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

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 guilt y plea and his thirty-six month sentence for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. D e La Sancha
argues that his prior T e x a s c o n victions of unlawful delivery of a controlled substance, driving while intoxicated, and unlawfully carrying a w e apon in a tavern, were not aggravated felon i e s , and therefore, the district court plainly 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 Novembe r 29, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 11-40683 Document: 00512067544 Page: 1 Date Filed: 11/29/2012No. 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 carry i n g a w eapon 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 governm e n t m a i ntains, however, that De La Sancha’s prior Texas conviction for unlawful deliv e r y w as 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 S t a t e s v. Mondragon–Santiago 564 F.3d 357, 361 (5th Cir. 2009). U n d er 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 corr e c t 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 c o n t rolled 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 deliv e r y w a s an offer to sell a controlled substance. See United States v. Ibarra–Luna , 628 F.3d 712, 715–16 (5th Cir. 2 0 1 0 )

. This offense, however, is an aggr a vated felony if the delivery was an actual transfer of a controlled substance. See 8 U.S.C. § 1101(a)(43)(B) ( d e f i ni n g “ a g gr avated 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 cri m e” a s “ a ny f e l o ny p u ni s h able 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 Ac t); § 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 c h arged with unlawfully delivering cocaine by actual transfer, constructive transfer, and a n o f f er to sell. The government concedes that from the state court documents, we cannot determin e 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 Sh e p a rd v. United States , 544 U.S. 13, 16 (2005). Therefore, De La San c h a ’ s prior conviction is not a n a g gr a vated felony, and it was error to sentence him pursuant to § 1326(b)(2). De La Sancha concedes that he cannot show that this error affect e d his substantial r i ghts, 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 vac a t e D e 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 co r r e c t statutory subsection. Id

. at 369. We 1 therefore AFFIRM the d istrict court’s judgment, but REFORM it to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1).

Ou r rec ent dec isi on in Uni ted States v. Ch av ez -H ern andez , 671 F.3d 494 (5t h Cir. 1 2012) , doe s not aff

ect the app licabil i t y o f Mo ndra gon-Sa ntia

go to De La Sanc ha’s cas e. Chav ez -H

ern andez add res se d w heth er we sho uld cons ide r evide ntiar y adm iss ions by the def enda nt’ s couns el dur ing a se nten cing hear ing in dec idi ng wh ethe r to exerc ise our dis cre tio n to cor rec t a plai n err or unde r the fou rth pr ong of plai n-e rro r revie w. Id

. at 500. As expla ined above, we need not add res s the fou rth pr ong in the ins tant cas e beca use De La Sanc ha canno t sho w thatt he err or aff ect ed his s ubs tant ial right s unde r pr ong t hree

.

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