United States v. Ivan Valdespino

Case: 18-11396 Document: 00515109602 Page: 1 Date Filed: 09/09/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 18-11396 FILED Summary Calendar September 9, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee v.

IVAN VALDESPINO,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CR-114-1

Before STEWART, Chief Judge, and HIGGINSON and COSTA, Circuit Judges.

PER CURIAM: * Ivan Valdespino pleaded guilty to attempting to obtain contraband while incarcerated for separate drug and firearms offenses. He was sentenced to nine months of imprisonment and three years of supervised release. The term of supervised release was ordered to run concurrently with the term of supervised release in the drug and firearms case.

• • 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-11396 Document: 00515109602 Page: 2 Date Filed: 09/09/2019

No. 18-11396

The district court revoked his supervised release in both cases due to his violations of various conditions and sentenced him to serve 30 months of imprisonment concurrently with a sentence of 37 months in the drug and firearms case. He appeals the 30-month sentence, arguing that it exceeds the statutory maximum sentence. A sentence that exceeds the statutory maximum is an illegal sentence. United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008). Despite the lack of any objection in the district court, our review is de novo. United States v. Oswalt, 771 F.3d 849, 850 (5th Cir. 2014); Vera, 542 F.3d at 459. As the Government concedes, the 30-month sentence imposed exceeds the 24-month statutory maximum sentence that may be imposed upon revocation of supervised release in the contraband case, see 18 U.S.C. § 1791(b)(3); 18 U.S.C. § 3583(e)(3), and it must be corrected. See United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008). Accordingly, we VACATE the sentence and REMAND for resentencing.