* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40888

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESUS CAMPOS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-500-1

Before SMITH, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Jesus Campos appeals his guilty-plea conviction and sentence for being

unlawfully present in the United States after having been removed previously.

He argues that the district court committed reversible plain error by entering a

judgment reflecting that he was convicted of an offense under 8 U.S.C.

§ 1326(b)(2) because he did not have a prior conviction that qualified as an

“aggravated felony.” He also challenges the constitutionality of § 1326(b) in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).

United States Court of Appeals

Fifth Circuit

F I L E D

May 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-40888

2

Campos correctly concedes that review of his first argument is for plain

error. See FED. R. CRIM.P. 52(b); United States v. Peltier, 505 F.3d 389, 392 (5th

Cir. 2007), petition for cert. filed (Jan. 22, 2008) (No. 07-8978). To obtain relief,

he must show that the district court committed (1) an error (2) that is clear or

obvious and (3) that affects his substantial rights. See United States v. Olano,

507 U.S. 725, 732–34 (1993). If Campos makes this showing, then the decision

to correct the error is within this court’s discretion. Id. The maximum penalty

for unlawful reentry of an alien whose removal was subsequent to, inter alia, a

prior felony conviction, is 10 years. § 1326(b)(1). The maximum penalty for

unlawful reentry of an alien whose removal was subsequentto, inter alia, a prior

aggravated felony conviction, is 20 years. § 1326(b)(2). An “aggravated felony”

is defined in relevant part as a crime of violence for which the punishment is no

less than one year of imprisonment. 8 U.S.C. § 1101(a)(43)(F). 

The presentence report reflects that Campos has only one prior felony

conviction—that being for attempted robbery. The trial court sentenced Campos

to 75 days of imprisonment and five years of probation on the attempted robbery

charge. Thus, Campos’s prior felony conviction is not a qualifying “aggravated

felony” for purposes of § 1326(b)(2). See § 1101(a)(43)(F). Because Campos does

not have a qualifying prior “aggravated felony” conviction, he cannot be

convicted under § 1326(b)(2). Accordingly, the district court committed a clear

or obvious error when it entered a judgment reflecting that Campos was

convicted pursuant to § 1326(b)(2).

Nevertheless, Campos is not entitled to resentencing because he cannot

show that the district court’s error affected his substantial rights. See Olano,

507 U.S. at 732–34. First, no record evidence exists to support the proposition

that the district court’s sentence was influenced by an incorrect understanding

of the statutory maximum sentence in this case. And second, the sentence

imposed was within a properly calculated guidelines range—which Campos does

not contest—and the sentence was below the statutory maximum of 10 years of
No. 07-40888

3

imprisonment under the correct subsection of § 1326(b). As a result, the district

court did not commit reversible plain error. See Olano, 507 U.S. at 732–34. The

judgment, however, is modified in accordance with this opinion to reflect a

conviction pursuant to § 1326(b)(1). See United States v. Castro-Trevino, 464

F.3d 536, 543 n.16, 547 (5th Cir. 2006).

In light of Apprendi, Campos also challenges the constitutionality of §

1326(b)’s treatment of prior felony and aggravated felony convictions as

sentencing factors rather than as elements of the offense that must be found by

a jury. This argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th

Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).

Accordingly, the district court’s judgment is AFFIRMED, as modified.