Case: 14-41261      Document: 00513209688         Page: 1    Date Filed: 09/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-41261                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 28, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

CARLOS JONATHAN QUINTANILLA-VENTURA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-525


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Carlos Jonathan Quintanilla-Ventura appeals his conviction and
sentence for illegal reentry after conviction of an aggravated felony under 8
U.S.C. § 1326(b)(2). Because Quintanilla-Ventura has not established any
effect on his substantial rights, we AFFIRM his conviction and sentence and
REMAND to the district court for the limited purpose of correcting the
judgment to reflect the correct offense of conviction as under § 1326(b)(1).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41261
                                                 I.
       Quintanilla-Ventura is a Salvadoran citizen who pleaded guilty to
unlawful reentry in violation of 8 U.S.C. § 1326(a) and (b). In the presentence
report (PSR), the probation officer recommended a sixteen-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii), predicated on Quintanilla-Ventura’s 2007
state court conviction for attempted sexual assault in violation of Texas Penal
Code § 22.011. The PSR identified a maximum term of imprisonment of 20
years and calculated the guideline sentencing range as 41 to 51 months.
       The district court adopted the PSR—to which Quintanilla-Ventura did
not object—and sentenced him to 51 months’ imprisonment for violation of 8
U.S.C. § 1326(a) and (b)(2). Quintanilla-Ventura now argues that his 2007
conviction was not an aggravated felony, and the district court plainly erred by
convicting him of violating § 1326(b)(2) rather than (b)(1). 1
       To demonstrate plain error, Quintanilla-Ventura must make four
showings:

       First, there must be an error or defect—some sort of “[d]eviation
       from a legal rule”—that has not been intentionally relinquished or
       abandoned, i.e., affirmatively waived, by the appellant. Second,
       the legal error must be clear or obvious, rather than subject to
       reasonable dispute. Third, the error must have affected the
       appellant’s substantial rights, which in the ordinary case means
       he must demonstrate that it “affected the outcome of the district
       court proceedings.” Fourth and finally, if the above three prongs
       are satisfied, the court of appeals has the discretion to remedy the
       error—discretion which ought to be exercised only if the error
       “seriously affect[s] the fairness, integrity or public reputation of
       judicial proceedings.”




       1  8 U.S.C. § 1326(b)(2) establishes a maximum sentence of twenty years for reentry by
an alien deported after conviction for an aggravated felony, while § 1326(b)(1) provides for
up to ten years’ imprisonment for aliens deported after conviction for certain misdemeanors
or for a felony other than an aggravated felony.
                                             2
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                                      No. 14-41261
Puckett v. United States, 

, 135 (2009) (alterations in original)
(citations omitted) (quoting United States v. Olano, 

, 732–33, 734,
736 (1993)).
                                            II.
       Applying the modified categorical approach, the parties agree that
Quintanilla-Ventura’s 2007 conviction was for violating § 22.011(a)(1) of the
Texas Penal Code, which prohibits “intentionally or knowingly . . . caus[ing]
the penetration of the anus or sexual organ of another person by any means,
without that person’s consent.” Because consent may be lacking under the
statute for reasons that do not involve a substantial risk of destructive or
violent force, we have held that § 22.011(a)(1) is not categorically a crime of
violence under 18 U.S.C. § 16(b). Rodriguez v. Holder, 

(5th Cir.
2013) (vacating removal order because conviction under § 22.011 did not
establish that petitioner had necessarily been convicted of an aggravated
felony). The 2007 indictment does not categorically establish that Quintanilla-
Ventura was convicted of an aggravated felony. The district court therefore
erred by convicting Quintanilla-Ventura under § 1326(b)(2).
       Even assuming that such error was clear or obvious, however,
Quintanilla-Ventura concedes that he cannot demonstrate any effect on his
substantial rights. 2 Indeed, Quintanilla-Ventura was sentenced well below the
maximum of ten years allowed under 8 U.S.C. § 1326(b)(1), and the district
court at sentencing emphasized its concern about the seriousness of
Quintanilla-Ventura’s 2007 crime as the basis for his sentence.                  Nor has
Quintanilla-Ventura argued that the error seriously affected the fairness,


       2 In light of this concession, Quintanilla-Ventura seeks only remand to the district
court with instructions to reform the judgment. See United States v. Mejia, 589 F. App’x 296
(5th Cir. 2015) (affirming defendant’s conviction and sentence but remanding to the district
court to correct the judgment to reflect conviction under § 1326(b)(1), where defendant had
violated Texas Penal Code § 20.011).
                                             3
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                                No. 14-41261
integrity, or public reputation of judicial proceedings, so as to establish the
fourth prong of plain error.
                                     III.
      For the foregoing reasons, we AFFIRM Quintanilla-Ventura’s conviction
and sentence. We REMAND to the district court for the limited purpose of
correcting the judgment to reflect the correct offense of conviction as under 8
U.S.C. § 1326(b)(1).




                                      4