IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20016

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARTIN ACOSTA YEPEZ, also known as Martin Yepez Acosta, also known as

Degoberto Acosta, also known as Martin Acosta, also known as Martin AcostaYepez, also known as Martin Y. Acosta, also known as Juan Martin Acosta,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-525-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Martin Acosta Yepez appeals from his conviction of illegal reentry

following removal. He contends solely that his Texas conviction of delivery of

cocaine did not constitute an aggravated felony for the purpose of sentencing him

pursuant to 8 U.S.C. 1326(b)(2), which carries a maximum 20-year term of

imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2011

Lyle W. Cayce

Clerk

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.

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No. 11-20016

Acosta Yepez invited the district court to treat his Texas conviction as an

aggravated felony when arguing for a downward departure from his guideline

sentencing range. The Government, however, does not argue that he is

precluded from raising the aggravated felony issue under the invited error

doctrine. Out of an abundance of caution, we review Acosta Yepez’s contention

for plain error. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th

Cir. 2006). To show plain error, the appellant must show a forfeited error that

is clear or obvious and that affects his substantial rights. Puckett v. United

States, 129 S. Ct. 1423, 1429 (2009). If the appellant 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. To

demonstrate prejudice, Acosta Yepez must demonstrate that the allegedly

incorrect application of § 1326(b)(2) affected his sentence. See United States v.

Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).

Acosta Yepez’s state court judgment of conviction indicates that he was

convicted of delivery of cocaine and was sentenced to six months in the county

jail. He was charged in three separate paragraphs with delivery of cocaine to G.

Flores by actual transfer, constructive transfer, and/or offer to sell. It is unclear

under which theory Acosta Yepez was convicted. The delivery of cocaine in

Texas by offer to sell is not an aggravated felony under federal law, and the

offense of delivery therefore is not categorically an aggravated felony. See

United States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010). The district

court thus erred by finding that Acosta Yepez’s previous drug offense was an

aggravated felony for purposes of § 1326.

The district court’s error, however, did not affect Acosta Yepez’s

substantial rights. His sentence of 54 months of imprisonment was within the

unchallenged 46-57 month guideline sentencing range and was less than the 10

year maximum sentence provided for a defendant with a prior non-aggravated

felony. See § 1326(b)(1). The district court determined that a within-range

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No. 11-20016

sentence was appropriate, particularly in light of his previously lenient

sentences, his established recidivism, and his relatively rapid return to the

United States after his removal. Acosta Yepez cannot carry his burden of

showing that his sentence would have been different had the district court been

bound by a 10-year statutory maximum instead of a 20-year one. See

Mondragon-Santiago, 564 F.3d at 369.

Acosta Yepez has not demonstrated reversible plain error in the

calculation of his sentence. Under the circumstances, however, we grant his

request (to which the Government agrees) that we remand the case to the

district court for the limited purpose of reforming the judgment and sentence to

indicate that Acosta Yepez is sentenced pursuant to § 1326(b)(1) and not §

1326(b)(2).

AFFIRMED. LIMITED REMAND TO REFORM JUDGMENT.

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