United States v. De La Mora , 308 F. App'x 813 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2009
No. 07-40933
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARCOS DE LA MORA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-772-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Marcos De La Mora appeals from the sentence imposed following his guilty
plea conviction of being “found in” the United States after having previously
been deported, in violation of 8 U.S.C. § 1326. De La Mora was sentenced within
his advisory sentencing guidelines range to an 80-month term of imprisonment.
Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decision for reasonableness in light of the sentencing
factors in 18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-40933
(2007). First, we consider whether the sentence imposed is procedurally sound.
Id. at 597. Thereafter, we consider whether the sentence is substantively
reasonable, using an abuse-of-discretion standard. Id. A sentence imposed
within a properly calculated guideline range is entitled to a rebuttable
presumption of reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462
(2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
De La Mora first contends that Gall v. United States, 128 S. Ct. 586, 596
(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which were issued
after his sentencing, abrogated the rationale of previous Fifth Circuit decisions
by broadening the district court’s discretion to impose a non-guidelines sentence.
He argues, therefore, that the sentencing court labored under a misconception
that it could not sentence him below the Guidelines in the absence of
“extraordinary circumstances” or based on the court’s disagreement with
guidelines policy. Because this theory was not argued in the district court, we
review for plain error. See Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),
cert. denied, 129 S. Ct. 328 (2008). Nothing in the record suggests that the
district court was constrained by this court’s precedent from considering all of
De La Mora’s arguments for a non-guidelines sentence. Accordingly, there was
no plain error. See id.
Citing the Supreme Court’s decisions in Kimbrough, 128 S. Ct. at 575, and
Rita, 127 S. Ct. at 2462, De La Mora additionally argues that the within-
guidelines sentence imposed in his case should not be accorded a presumption
of reasonableness. De La Mora contends that the justification for applying a
presumption of reasonableness in his case is undercut because U.S.S.G. § 2L1.1,
the Guideline used to calculate his advisory sentencing guidelines range, was not
promulgated according to usual Sentencing Commission procedures and did not
take into account “empirical data and national experience.” De La Mora
portrays the Kimbrough decision as having suggested that the appellate
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No. 07-40933
presumption should not be applied to Guidelines that did not take account of this
data and experience.
Our reading of Kimbrough does not reveal any such suggestion. The
question presented in Kimbrough was whether “a sentence . . . outside the
guidelines range is per se unreasonable when it is based on a disagreement with
the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct. at
564. Speaking specifically to the crack cocaine Guidelines, the Court simply
ruled that “it would not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a
mine-run case.” Id. at 575. In Kimbrough, the Court said nothing of the
applicability of the presumption of reasonableness.
The appellate presumption is therefore applicable in this case. After
considering the substantive reasonableness of the sentence imposed by the
district court, we hold that De La Mora’s appellate arguments fail to establish
that his sentence is unreasonable.
De La Mora also contends that the district court’s written judgment
erroneously identifies the offense of conviction. De La Mora specifically asserts
that he pleaded guilty to “being found in the United States following
deportation” but that his judgment wrongly states that he was convicted of the
distinct offense of illegal reentry. De La Mora argues that the judgment must
be vacated and remanded for correction of the clerical error, pursuant to FED.
R. CRIM. P. 36
Rule 36 authorizes us to correct only clerical errors, which exist when “the
court intended one thing but by merely clerical mistake or oversight did
another.” United States v. Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995). In
the district court’s judgment, the “Nature of Offense” description (i.e., “Re-entry
of a deported alien”) so closely tracks the § 1326 title, “[r]eentry of removed
aliens,” that it bears no indicia of the district court having made a mistake or
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oversight. Rather, it appears that the district court intended the “Nature of
Offense” to refer generally to the title of § 1326. Such a method of reference to
§ 1326 is not uncommon; in fact, this court has often used the term “illegal
reentry” in reference to violations of § 1326 generally. See, e.g., United States v.
Gunera, 479 F.3d 373, 376 (5th Cir. 2007). Thus, it appears that the manner in
which the district court’s written judgment identifies De La Mora’s offense is an
intentional reference to § 1326 generally, and such is not a clerical error.
Accordingly, the district court’s judgment is AFFIRMED.
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