United States v. Santos Ortiz-Maldonado ( 2015 )

Case: 14-41071 Document: 00513075943 Page: 1 Date Filed: 06/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-41071 FILED
Summary Calendar June 11, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SANTOS ORTIZ-MALDONADO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-280
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Santos Ortiz-Maldonado (Ortiz-Maldonado) pleaded guilty to illegal
reentry by a previously deported alien after an aggravated felony conviction.
Ortiz-Maldonado argues that the district court plainly erred in convicting,
sentencing, and entering judgment against him under 8 U.S.C. § 1326(b)(2),
because he was not deported following a conviction for an “aggravated felony”
as defined in 8 U.S.C. § 1101(a)(43). He contends that the sentence should be
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-41071 Document: 00513075943 Page: 2 Date Filed: 06/11/2015
No. 14-41071
vacated and remanded for resentencing or, in the alternative, for reformation
of the judgment to reflect that he was convicted and sentenced under
§ 1326(b)(1).
As Ortiz-Maldonado acknowledges, his claim is reviewed for plain error
because he did not raise it in the district court. See United States v.
Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). To establish plain
error, an appellant must show a forfeited error that is clear or obvious and that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
This Court has not decided whether a conviction for conspiracy to
transport firearms, in violation of 18 U.S.C. §§ 371 and 922(a)(5), qualifies as
an aggravated felony, and the authorities cited by Ortiz-Maldonado do not
compel the conclusion that it does not. Therefore, he has not demonstrated
clear or obvious error. Even if Ortiz-Maldonado had demonstrated clear or
obvious error, crucially, he concedes that he cannot show that such error
affected his sentencing outcome. See Mondragon-Santiago, 564 F.3d at 369
(finding no plain error where defendant failed to show that the outcome of the
sentencing would have been different). Notably, Ortiz-Maldonado’s sentence
of twenty-four months did not exceed the statutory maximum of ten years
under § 1326(b)(1). See id. Because Ortiz-Maldonado cannot overcome plain
error review and because the Government does not concede that the judgment
should be reformed, Ortiz-Maldonado has not shown that his case should be
remanded for resentencing or that the judgment should be reformed. See, e.g.,
United States v. Guerra, 542 F. App’x 393, 394 (5th Cir. 2013); United States v.
2
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No. 14-41071
Castro-Gonzalez, 530 F. App’x 285, 291 (5th Cir. 2013); 1 cf. Mondragon-
Santiago, 564 F.3d at 367-69.
AFFIRMED.
1Although United States v. Guerra and United States v. Castro-Gonzalez are
unpublished and, thus, not binding precedent, they are still persuasive. See United States v.
Johnson, 619 F.3d 469, 473 n.3 (5th Cir. 2010).
3