United States v. Abel Becerra , 697 F. App'x 300 ( 2017 )

Case: 16-41623 Document: 00514138974 Page: 1 Date Filed: 08/31/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-41623
Fif h Circuit
FILED
Summary Calendar August 31, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ABEL BECERRA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-1048-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Abel Becerra was convicted of being found in the United States after a
previous deportation and was sentenced above the guidelines range to 28
months of imprisonment. Becerra argues on appeal that his case should be
remanded to the district court for the limited purpose of reforming the
statement of reasons to match the district court’s oral justification for imposing
his above-guidelines sentence. He contends that the district court orally
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-41623 Document: 00514138974 Page: 2 Date Filed: 08/31/2017
No. 16-41623
imposed an upward variance at sentencing, but the statement of reasons
reflects that the district court granted the Government’s motion to upwardly
depart pursuant to U.S.S.G. § 5K2.0(a)(2).
Federal Rule of Criminal Procedure 36 states, “After giving any notice it
considers appropriate, the court may at any time correct a clerical error in a
judgment, order, or other part of the record, or correct an error in the record
arising from oversight or omission.” The nature of the above-guidelines
sentence orally imposed by the district court in this case is ambiguous.
Accordingly, the district court’s reliance in the statement of reasons on
§ 5K2.0(a)(2) as the basis for departure cannot be characterized as a mere
clerical error that can be reformed under Rule 36.
In response to the Government’s argument that the district court orally
imposed a § 5K2.0 upward departure, rather than an upward variance, Becerra
argues for the first time in his reply brief that the district court committed
plain error in applying a § 5K2.0(a)(2) upward departure. However, we will
not consider this argument because it is being raised for the first time in a
reply brief. See United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir.
2006). Although Becerra contends that his argument should be considered
because it is being made in response to the Government’s “unexpected”
argument that the district court was imposing an upward departure, the
Government’s brief did not address the issue whether the application of such
an upward departure was procedurally reasonable.
Accordingly, the district court’s judgment is AFFIRMED.
2