United States v. Espino-Maqueda , 311 F. App'x 688 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-40457
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALVARO ESPINO-MAQUEDA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-588-1
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alvaro Espino-Maqueda (Espino) pleaded guilty to one count of violating
8 U.S.C. § 1326 by being found in the United States after previously having been
deported. He was sentenced to 70 months of imprisonment.
Espino 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 found in”
*
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should not be published and is not precedent except under the limited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. 08-40457
the United States and not of “Illegal Re-entry,” the offense that is listed on the
judgment. He argues that “being found in” the United States and “illegal
reentry” are distinct offenses.
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.” 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, “Illegal Re-entry,” so closely tracks the § 1326
title, “Reentry 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).
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