United States v. Retiguin-Cerdan , 302 F. App'x 269 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-41122
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HUGO RETIGUIN-CERDAN
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1737-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Hugo Retiguin-Cerdan (Retiguin) pleaded guilty to one count of being
unlawfully found in the United States after having previously been deported
following a felony conviction for unauthorized use of a motor vehicle, in violation
of 8 U.S.C. § 1326. He was sentenced to a total of 30 months in prison.
Retiguin appeals his conviction for the limited purpose of correcting the
judgment under FED. R. CRIM. P. 36, arguing that the judgment should reflect
that he was convicted of “being found in” the United States and not of “[r]e-entry
*
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should not be published and is not precedent except under the limited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. 07-41122
of a deported alien,” as listed in the judgment. He argues that “being found in”
the United States and “illegal reentry” are distinct offenses.
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, 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,” 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.
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).
It appears that the district court’s judgment uses the term “[r]e-entry of a
deported alien” intentionally in reference to § 1326 generally; therefore, there is
no clerical error. Accordingly, the judgment of the district court is AFFIRMED.
2