United States v. Manuel Contreras

Court Case Details
Court Case Opinion

Case: 10-20645 Document: 00511606026 Page: 1 Date Filed: 09/19/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

September 19, 2011

No. 10-20645

Summary Calendar

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MANUEL OLIVAS CONTRERAS, also known as Manuel Olivas, also known as
Manuel Olivas-Contreras, also known as Santiago Herrera-Vasquez,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-288-1

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.

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PER CURIAM:

Manuel Olivas Contreras pleaded guilty to illegal reentry after deportation

following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(b)(2).

At sentencing, Olivas contended: his 2007 deferred adjudication did not qualify

as an aggravated felony under the statute; and, therefore, his offense was subject

to a 10-year maximum sentence under 8 U.S.C. § 1326(b)(1), rather than a 20-

year maximum under 8 U.S.C. § 1326(b)(2). The Government conceded the point,

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Pursuant to 5

C

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R.

47.5, the court has determined that this opinion should not

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be published and is not precedent except under the limited circumstances set forth in 5

C

.

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R.

47.5.4.

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No. 10-20645

and the district court noted the correction. Nevertheless, the judgment of

conviction did not reflect this fact and stated incorrectly that Olivas had been

convicted under § 1326(b)(2). Olivas contends the error: requires remand, for

the judgment to be modified to reflect conviction and sentencing under 8 U.S.C.

§ 1326(b)(1), not § 1326(b)(2); and entitles him to resentencing.

Regarding the modification, the Government concedes that Olivas had not

been convicted of an aggravated felony before deportation and agrees the

judgment must be reformed to reflect that Olivas was convicted under 8 U.S.C.

§ 1326(b)(1) because the written judgment conflicts with the district court’s oral

pronouncement.

Olivas bases his assertion that he is entitled to resentencing on the claim

that the district court committed procedural error by considering the aggravated

felony conviction in determining his sentence. Our court reviews sentencing

decisions for reasonableness, first ensuring that the district court did not commit

significant procedural error. United States v. Cisneros-Gutierrez, 517 F.3d 751,

764 (5th Cir. 2008). “A procedural error during sentencing is harmless if the

error did not affect the district court’s selection of the sentence imposed.” United

States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (citations and

internal quotations marks omitted). The proponent of the sentence bears the

burden of establishing that the error was harmless. Id.

The government asserts the error was harmless. On the other hand, Olivas

contends that the district court, in imposing, inter alia, 48 months’

imprisonment, could have misunderstood he was subject to a 20-year, rather

than a 10-year, maximum sentence. In any event, an error in the district court’s

understanding that occurred after sentencing is harmless. See id. at 753. At

sentencing, the court ruled the 20-year maximum did not apply. And, at that

same 16-minute hearing, the court ruled that a downward departure was

appropriate, in part, “to reflect the fact that [Olivas] did receive deferred

adjudication in the aggravated assault case in the state court”. These rulings

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No. 10-20645

show the district court understood the maximum sentence when it sentenced

Olivas. Therefore, the error in the written judgment was harmless.

The judgment is modified to reflect a conviction under § 1326(b)(1), instead

of § 1326(b)(2), and this matter is remanded to district court for the limited

purpose of correcting the written judgment to reflect this modification.

AFFIRMED AS MODIFIED; LIMITED REMAND FOR CORRECTION OF

JUDGMENT.

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