IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40683

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE BOLIVAR DE LA SANCHA-VILLARREAL, also known as Jose De La

Sanchez-Villareal,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 2:11-CR-25-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Jose Bolivar De La Sancha-Villarreal (“De La Sancha”) appeals both his

conviction upon his guilty plea and his thirty-six month sentence for illegal

reentry following deportation, in violation of 8 U.S.C. § 1326. De La Sancha

argues that his prior Texas convictions of unlawful delivery of a controlled

substance, driving while intoxicated, and unlawfully carrying a weapon in a

tavern, were not aggravated felonies, and therefore, the district court plainly

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2012

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. 11-40683

erred in sentencing him pursuant to 8 U.S.C. § 1326(b)(2), which provides for a

20-year maximum statutory sentence, instead of § 1326(b)(1), which provides for

a 10-year maximum statutory sentence. We have held previously that the Texas

offenses of driving while intoxicated and unlawfully carrying a weapon into a

place licensed or permitted to sell alcoholic beverages–such as a tavern–are not

aggravated felonies. See United States v. Chapa-Garza, 243 F.3d 921, 927 (5th

Cir. 2001); United States v. Hernandez-Neave, 291 F.3d 296, 298–300 (5th Cir.

2001). The government maintains, however, that De La Sancha’s prior Texas

conviction for unlawful delivery was an aggravated felony for the purposes of

sentencing under § 1326(b). 

Because De La Sancha did not object to the district court sentencing him

under § 1326(b)(2), we review for plain error. See United States v.

Mondragon–Santiago 564 F.3d 357, 361 (5th Cir. 2009). Under plain-error

review, we must determine whether: (1) there was error, (2) the error was plain,

(3) the error affects a defendant’s substantial rights, and (4) we should exercise

our discretion to correct the error in order to prevent a miscarriage of justice. 

United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Villegas, 404

F.3d 358, 358–59 (5th Cir. 2005).

An aggravated felony is defined, in relevant part, to mean “illicit

trafficking in a controlled substance (as defined in section 802 of Title 21),

including a drug trafficking crime (as defined in section 924(c) of Title 18).” 

8 U.S.C. § 1101(a)(43)(B). De La Sancha was previously convicted in Texas of

unlawfully delivering a controlled substance. This offense is not an aggravated

felony if the delivery was an offer to sell a controlled substance. See United

States v. Ibarra–Luna, 628 F.3d 712, 715–16 (5th Cir. 2010). This offense,

however, is an aggravated felony if the delivery was an actual transfer of a

controlled substance. See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony”

to include “a drug trafficking crime” as defined in 18 U.S.C. § 924(c)); § 924(c)(2)

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(defining “drug trafficking crime” as “any felony punishable under the Controlled

Substances Act”); 21 U.S.C. §§ 802(8) & (11), 841(a)(1) (criminalizing delivery of

a controlled substance under the Controlled Substances Act); § 812(c)

(identifying cocaine as a Schedule II narcotic); § 841(b)(1)(C) (providing

punishment of up to 20 years for distribution of cocaine in any amount).

De La Sancha was charged with unlawfully delivering cocaine by actual

transfer, constructive transfer, and an offer to sell. The government concedes

that from the state court documents, we cannot determine which of the three

alternate manners and means De La Sancha used to commit the offense. There

are no Shepard-approved documents to narrow the nature of the delivery. See

Shepard v. United States, 544 U.S. 13, 16 (2005). Therefore, De La Sancha’s

prior conviction is not an aggravated felony, and it was error to sentence him

pursuant to § 1326(b)(2).

De La Sancha concedes that he cannot show that this error affected his

substantial rights, or that any other alleged error in using his other prior

convictions affect his substantial rights. Therefore, there is no plain error that

requires us to vacate De La Sancha’s conviction or sentence. See MondragonSantiago, 564 F.3d at 369. Consistent with our prior holding in MondragonSantiago, however, De La Sancha is entitled to a reformation of the district

court’s judgment to reflect the correct statutory subsection. Id. at 369. We 1

therefore AFFIRM the district court’s judgment, but REFORM it to reflect

conviction and sentencing under 8 U.S.C. § 1326(b)(1).

Our recent decision in United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. 1

2012), does not affect the applicability of Mondragon-Santiago to De La Sancha’s case. 

Chavez-Hernandez addressed whether we should consider evidentiary admissions by the

defendant’s counsel during a sentencing hearing in deciding whether to exercise our discretion

to correct a plain error under the fourth prong of plain-error review. Id. at 500. As explained

above, we need not address the fourth prong in the instant case because De La Sancha cannot

show that the error affected his substantial rights under prong three. 

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