United States v. Garcia , 310 F. App'x 683 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-20092
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE GARCIA, also known as Pedro Garcia
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-360-ALL
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Garcia appeals his guilty plea conviction for being found unlawfully
in the United States following deportation in violation of 8 U.S.C. § 1326. He
requests only that this court exercise its power pursuant to Federal Rule of
Criminal Procedure 36 to correct an alleged clerical error in the judgment.
Specifically, he alleges that the district court’s judgment misidentifies the nature
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20092
of his offense as “[i]llegal reentry after deportation” when it should state that he
was found unlawfully in the United States.
Rule 36 authorizes this court 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, 1026 n.3 (5th Cir. 1995)
(internal quotation marks and citations omitted). In the district court’s
judgment, the “Nature of Offense” description, “[i]llegal reentry after deportation
following conviction for an aggravated felony,” 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 oversight. Rather, it appears that the district court intended
the “Nature of Offense” to refer generally to the title of § 1326. Therefore, there
is no clerical error, and the judgment of the district court is AFFIRMED. See
United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008).
2