### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 c o nviction of illegal reentry following removal. H e c o ntends solely that his Texas conviction of delivery of

c o c aine did not constitute an aggravated felony for the purpose of sentencing hi m pursuant to 8 U

. S

. C

. 1326(b)(2), which carries a maximum 20-year term of imprisonment. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 2 2, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20016 Document: 00511704369 Page: 1 Date Filed: 12/22/2011No. 11-20016

Acosta Yepez invited the district court to treat his Texas conviction as an aggravated felony when a r gu i n g for a downward departure from his guideline sentencing range. The Governm ent, however, does not argue that he is precluded from raising the aggravated f e l o ny i ssue under the invited error doctrine. Out of an abundance of caution, we review Acosta Yepez’s contention for plain error. See U n i t e d S t ates 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 . U n i t e d States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has the discretion to correct th e e rr o r 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. 200 9). Acosta Yepez’s state court judgment of convic t i o n i n dicates 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 T e x a s by offer to sell is not an aggravated felony under federal law, an d th e offense of delivery therefore is not c a t e go ri cally an aggravated felony. See United Sta t e s v . I

barra-Luna , 628 F.3d 712, 716 (5th Cir. 2010). The district court thus erred by finding that Ac o s ta Yepez’s previous drug offense was an aggravated felony for purposes of § 1326. The distri c t c ourt’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 d e t e r m i ned that a within-range
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s entence was appropriate, particularly in light of his previously l e n i e n t sentences, his established recidivism, and his relatively rapid return to the United States af

ter 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 i n the calculatio n of his sentence. Under the circumstances, however, we grant his request (to wh i c h th e G overnment agrees) that we remand the case to the district court for the limited purpose of reforming the judgment and sentence to i ndicate that Acosta Yepez is sentenced pursuant to § 1326(b)(1) a n d n o t § 1326(b)(2). AFFIRMED. LIMITED REMAND TO REFORM JUDGMENT.

3 Case: 11-20016 Document: 00511704369 Page: 3 Date Filed: 12/22/2011