United States v. Perez-Rodriguez , 294 F. App'x 963 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2008
No. 08-40096
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN CARLOS PEREZ-RODRIGUEZ, also known as Oscar Garcia-Perez, also
known as Eduardo Saragoza
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-1282-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Juan Carlos Perez-Rodriguez was indicted for violating 18 U.S.C. § 1326
as an alien who had previously been removed from the United States and who
was subsequently found in the United States without the consent of the Attorney
General or the Secretary of the Department of Homeland Security. He pleaded
guilty to the charge. The district court entered a judgment, which lists the
*
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should not be published and is not precedent except under the limited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. 08-40096
“nature of the offense” as “[r]e-entry of a deported alien,” and imposed an above-
Guidelines sentence of 40 months in prison.
Perez-Rodriguez avers that the sentence imposed by the district court was
procedurally unreasonable because the district court failed to adequately explain
why a sentence of 40 months, which was19 months above the maximum of the
Guideline imprisonment range, was not greater than necessary to meet the
purposes of § 3553(a). He avers further that before imposing the 40-month
sentence, the district court should have, but did not, consider the guideline
departure provision in U.S.S.G. § 4A1.3, which addresses underrepresentation
of a defendant’s criminal history score.
The sentence imposed by the district court is typically reviewed for
reasonableness. Gall v. United States, 128 S. Ct. 586, 591 (2007). The Supreme
Court rejected the notion that the district court needs extraordinary
circumstances to justify a deviation from the guidelines range. See id. at 595.
A district court, in sentencing, should use the guidelines sentence range as “the
starting point and the initial benchmark” but should then consider all of the
sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 596. “After settling on
the appropriate sentence, [the sentencing court] must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Id. at 597. Because Perez-Rodriguez did not
object to the district court’s failure to give adequate reasons, review is for plain
error. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.),
cert. denied, 128 S. Ct. 325 (2007).
The record shows that the district court considered the § 3553 factors,
including Perez-Rodriguez’s history and characteristics, the need for adequate
deterrence, and the need to protect the public from future crimes by Perez-
Rodriguez. Accordingly, the district court adequately stated the reasons for the
sentence. Gall, 128 S. Ct. at 597.
2
No. 08-40096
Perez-Rodriguez’s contention that, in order to comply with the
requirement to calculate the applicable advisory guidelines range, the district
court had to calculate a departure under § 4A1.3 is without merit. This court
specifically rejected this argument in United States v. Mejia-Huerta, 480 F.3d
713, 723 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008).
Lastly, Perez-Rodriguez has not shown that the 40-month sentence was
greater than necessary to meet the purposes of § 3553(a). The district court’s
determination that Perez-Rodriguez’s extensive criminal history, the likelihood
of recidivism, and the need to protect the public warranted an upward departure
does not constitute error and the extent of the departure was not unreasonable.
See United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004) see also United
States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006). Perez-Rodriguez
has not demonstrated that the district court procedurally erred or that his
sentence was otherwise unreasonable. See Gall, 128 S. Ct. at 596-97.
Perez-Rodriguez avers that, even if this court grants no other relief, the
court should exercise its power pursuant to FED. R. CRIM P. 36 to correct an
alleged clerical error in the judgment. He argues that the judgment
misidentifies the “nature of offense” of conviction as reentry of a deported alien,
when, he contends, it should state that he was convicted of the separate offense
of being unlawfully “found in” the United States following removal or
deportation.
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.” See United States v. Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995).
In the district court’s judgment, the “nature of the offense” description,
“[r]e-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 oversight. Rather, it appears that the district court intended the
“nature of the offense” to refer generally to the title of § 1326. Such a method of
3
No. 08-40096
reference to § 1326 is not uncommon; in fact, this court has often used the
similar 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) (“[A]n alien who
has previously been denied entry or been deported or removed commits the
offense of illegal reentry when the alien thereafter “enters, attempts to enter, or
is at any time found in, the United States . . . .” (emphasis added)); United States
v. Vargas-Garcia, 434 F.3d 345, 349 (5th Cir. 2005) (“The illegal reentry statute
defines Vargas-Garcia’s offense thusly: a removed alien commits illegal reentry
when he ‘enters, attempts to enter, or is at any time found in, the United States
. . . .’” (emphasis added)). Thus, it appears that the district court’s judgment
uses the term “re-entry of a deported alien” intentionally in reference to § 1326
generally, and such is not a clerical error.1 Accordingly, we AFFIRM.
1
As Defendant observes, we have noted that attempted reentry under §
1326 constitutes an offense distinct from either reentry or being found in the
United States under § 1326, see United States v. Angeles-Mascote, 206 F.3d 529,
531 (5th Cir. 2000); United States v. Martinez-Espinoza, 299 F.3d 414, 417 (5th
Cir. 2002); but such cases, which focus on the distinction between actual entry
and attempted entry, are inapposite here. In this case, the differences between
actual and attempted entry are not at issue. Rather, Defendant pled to being
found unlawfully in the United States, and we are called to determine whether
the judgment contained a clerical error in referring to that offense by its general
statutory title.
4