UNITED STATES v. GOMEZ (2019)

David Gomez pleaded guilty to illegal reentry after deportation and was sentenced within the guidelines range to 40 months of imprisonment, to be followed by three years of supervised release. The written judgment reflects that Gomez was sentenced under 8 U.S.C. § 1326(b)(2). Gomez argues that his 2011 Texas conviction on two counts of burglary of a habitation was mischaracterized as an aggravated felony for the purpose of § 1326(b)(2), and that he is entitled to correction of the judgment. We review for plain error, which requires Gomez to show (1) a forfeited error (2) that is clear and obvious, and (3) that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he can satisfy these three requirements, this court has the discretion to remedy the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 135, 129 S.Ct. 1423 (internal quotation marks and citation omitted).

Texas burglary of a habitation is no longer an aggravated felony for the purpose of § 1326(b)(2). See United States v. Godoy, 890 F.3d 531, 536-42 (5th Cir. 2018). We agree with Gomez that his judgment should be corrected to reflect conviction and sentence under § 1326(b)(1) instead of § 1326(b)(2). See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017). Accordingly, we REMAND to the district court for the limited purpose of correcting the judgment to reflect conviction and sentence under § 1326(b)(1) instead of § 1326(b)(2). In all other respects, the judgment is AFFIRMED.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.