United States v. Cervantes , 302 F. App'x 267 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-41097
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ROBERTO CERVANTES, also known as Roberto Cervantes, also known
as Gilberto Espinosa
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-919-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Roberto Cervantes appeals from his guilty plea conviction of one
count of illegal reentry, in violation of 8 U.S.C. § 1326. He requests only that
this court exercise its power pursuant to FED. R. CRIM P. 36 to correct an alleged
clerical error in the judgment. Specifically, he alleges that the judgment of the
district court misidentifies the nature of his offense as “[r]e-entry of a deported
alien” when it should state that he was illegally found in the United States.
*
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should not be published and is not precedent except under the limited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. 07-41097
Rule 36 provides that the court may at any time, after giving whatever
notice it deems appropriate, correct a clerical error in the judgment. The rule
authorizes the court to correct only such errors that exist because “‘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) (quoting Dura-
Wood Treating Co. v. Century Forest Indus., Inc., 694 F.2d 112, 114 (5th Cir.
1982). In the district court’s judgment, the “Nature of Offense” description, “[r]e-
entry of a deported alien,” closely tracks the § 1326 title, “[r]eentry of removed
aliens,” and, therefore, bears no indication that the district court made a
mistake. Rather, it appears that the district court intended the “Nature of
Offense” to refer generally to the title of § 1326.
The method of reference to § 1326 in the instant case is not uncommon.
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). Because the district court’s judgment in the instant case apparently used
the term “[r]e-entry of a deported alien” intentionally in reference to § 1326
generally, there is no clerical error. Accordingly, we AFFIRM.
2