IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40921

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FREDY ARMANDO MALDONADO-VILLEDA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:15-CR-145

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Fredy Armando Maldonado-Villeda appeals his guilty-plea conviction 

and sentence arguing that the district court plainly erred by entering a 

judgment reflecting that he was convicted under 8 U.S.C. § 1326(b)(2) when he 

did not have a qualifying aggravated-felony conviction. He argues that he 

should have been convicted and sentenced under § 1326(b)(1) and urges the 

court to vacate his conviction and sentence, reform the judgment to reflect a 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 5, 2016

Lyle W. Cayce

Clerk

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No. 15-40921

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conviction under § 1326(b)(1), and remand the case for resentencing. In the 

alternative, he asks the court to remand the case to the district court for 

reformation of the judgment to reflect a conviction under § 1326(b)(1).

Maldonado-Villeda concedes that our review is limited to plain error 

given his failure to raise an objection before the district court. Under the plainerror standard, a defendant must show a clear or obvious error that affected 

his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). This 

court has discretion to correct the error but only if it seriously affects the 

fairness, integrity, or public reputation of judicial proceedings. Id.

Maldonado-Villeda’s 2010 conviction for third-degree robbery in New 

York is not an “aggravated felony” for purposes of § 1326(b)(2) because he was 

sentenced to a prison term of less than one year. See 8 U.S.C. § 1101(a)(43)(F), 

(G). As such, Maldonado-Villeda should have been convicted and sentenced 

under § 1326(b)(1). Consequently, the district court committed a clear or 

obvious error when it entered a judgment incorrectly describing the offense of 

conviction as one for being an “alien unlawfully found in the United States 

after deportation, having previously been convicted of an aggravated felony.” 

But as Maldonado-Villeda correctly acknowledges, he cannot show that the 

error affected his substantial rights given this court’s decision in United States 

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

As in Mondragon-Santiago, there is no record evidence in this case that 

the district court’s incorrect understanding of the statutory maximum affected 

its sentence selection. See id. And like the defendant in Mondragon-Santiago, 

Maldonado-Villeda’s 41-month sentence is “within a properly calculated 

Guidelines range and below the statutory maximum” under § 1326(b)(2). See 

id. As such, remand for resentencing is not required. The judgment should be 

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changed to correctly identify the offense of conviction, and the Government 

says we should remand for that limited purpose.

Maldonado-Villeda’s conviction and sentence are AFFIRMED, but we 

REMAND this case to the district court for the limited purpose of correcting 

the written judgment to reflect the correct offense of conviction as under 

§ 1326(b)(1).

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