Case: 10-20645 Document: 00511606026 Page: 2 Date Filed: 09/19/2011
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
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