United States v. Abraham Hernandez-Alday , 589 F. App'x 301 ( 2015 )

Case: 14-40208 Document: 00512894630 Page: 1 Date Filed: 01/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 8, 2015
No. 14-40208
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ABRAHAM HERNANDEZ-ALDAY,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-409-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Abraham Hernandez-Alday pleaded guilty to being found unlawfully
present in the United States following removal; he received a below-guidelines
range sentence of 30 months of imprisonment.
The parties agree that, because Hernandez-Alday was sentenced to
deferred adjudication for a prior burglary conviction, he was not convicted of
an aggravated felony and, thus, the judgment improperly reflects that he was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40208 Document: 00512894630 Page: 2 Date Filed: 01/08/2015
No. 14-40208
convicted and sentenced under 8 U.S.C. § 1326(b)(2). See United States v.
Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). Because Hernandez-
Alday’s offense was a § 1326(b)(1) violation rather than a § 1326(b)(2) violation,
we REMAND for the limited purpose of reforming the judgment to reflect the
proper statute of conviction. See 28 U.S.C. § 2106. In all other respects, the
judgment is AFFIRMED.
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