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United States Court of Appeals, Fifth CircuitJun 8, 2011
428 Fed. Appx. 287 (5th Cir. 2011)

No. 10-40210 Summary Calendar.

June 8, 2011.

Lauretta Drake Bahry, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender's Office Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:09-CR-1477-1.

Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.

Eduardo Azael Varela-Ramirez (Varela) appeals following his guilty-plea conviction and sentence on one count of being illegally present in the United States after removal. Varela contends that he does not have a previous conviction that qualifies as a conviction of an "aggravated felony" under 8 U.S.C. § 1326(b)(2). Although he concedes that his 60-month sentence of imprisonment does not exceed the applicable statutory maximum under 8 U.S.C. § 1326(b)(1), Varela argues that the district court's mistaken belief, based on the Presentence Report (PSR), that the statutory maximum sentence was 20 years of imprisonment may have influenced the selection of a sentence. He requests that the matter be remanded for resentencing.

As the Government acknowledges, the PSR was in error in stating that Varela faced a 20-year maximum sentence, the statutory § 1326(b)(2), on account of a previous Texas conviction for which he received a sentence of deferred adjudication probation. See United States v. Mondragon-Santiago, 564 F.3d 357, 368-69 (5th Cir. 2009). However, Varela's failure to object to the PSR on this ground results in plain error review. See United States v. Medina Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). As he has not demonstrated that the inaccuracy in the PSR affected his substantial rights, Varela has not established plain error. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).

Varela also argues that, on account of the stigma associated with the determination that he committed an aggravated felony, a remand is required so that the judgment and the PSR can be corrected to reflect that he was convicted and sentenced under § 1326(b)(1). The district court's judgment, however, was not incorrect: it indicated that Varela had been convicted and sentenced under " 8 U.S.C. § 1326(a) and 1326(b)." Varela has not demonstrated that this court should remand for a correction of a clerical error in the judgment; he likewise has not shown that this court should reform the judgment. See FED.R.CRIMP. 36; Mondragon-Santiago, 564 F.3d at 369. Further, as stated above, Varela has not demonstrated that his substantial rights were affected by any inaccuracy in the PSR. See Puckett, 129 S.Ct. at 1429.


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