United States v. Garcia-Martinez , 311 F. App'x 687 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-20136
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JONATHAN GARCIA-MARTINEZ, also known as Jonathan Martinez Garcia
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-396-ALL
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jonathan Garcia-Martinez pleaded guilty to being “found in the United
States” following a prior removal and without having obtained consent to
reapply for admission, in violation of 8 U.S.C. § 1326. He was sentenced to 27
months in prison.
Garcia-Martinez appeals his conviction for the limited purpose of
correcting the judgment under Federal Rule of Criminal Procedure 36, arguing
that the judgment should be corrected to reflect that he was convicted of “being
*
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should not be published and is not precedent except under the limited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. 08-20136
found in” the United States and not of “illegal reentry,” the offense that is listed
on the judgment. Garcia-Martinez 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, 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,” 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