United States v. Rivera-Chavez , 310 F. App'x 724 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 19, 2009
    No. 07-41245
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    MARCIO JOAQUIN RIVERA-CHAVEZ, also known as Marcio Joaquin Rivera
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 3:07-CR-20-ALL
    Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
    PER CURIAM:*
    Marcio Joaquin Rivera-Chavez appeals the 77-month sentence imposed
    following his guilty plea conviction of illegal reentry into the United States after
    having been convicted of a felony, in violation of 
    8 U.S.C. § 1326
    (a) and (b)(1).
    Rivera-Chavez’s sentence was within a properly calculated advisory guidelines
    range that reflected a 16-level crime of violence enhancement based on his 1992
    conviction for illegally transporting an alien within the United States. On
    appeal, Rivera-Chavez argues that his sentence is unreasonable. Rivera-Chavez
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-41245
    also argues that we should remand his case to the district court pursuant to F ED.
    R. C RIM. P. 36 for correction of the judgment to reflect the proper offense of
    conviction.
    Rivera-Chavez first argues that his sentence is unreasonable. Following
    United States v. Booker, 
    543 U.S. 220
     (2005), we review a district court’s
    sentencing decisions for reasonableness in light of the sentencing factors in
    
    18 U.S.C. § 3553
    (a). Gall v. United States, 
    128 S. Ct. 586
    , 596-97 (2007). First,
    we consider whether the sentence imposed is procedurally sound. 
    Id. at 597
    .
    Thereafter, we consider whether the sentence is substantively reasonable, using
    an abuse-of-discretion standard. 
    Id.
     A sentence imposed within a properly
    calculated guideline range is entitled to a rebuttable presumption of
    reasonableness. Rita v. United States, 
    127 S. Ct. 2456
    , 2462 (2007); United
    States v. Alonzo, 
    435 F.3d 551
    , 554 (5th Cir. 2006).
    Rivera-Chavez contends that Gall, 
    128 S. Ct. at 596
    , and Kimbrough v.
    United States, 
    128 S. Ct. 558
     (2007), which issued after his sentencing,
    abrogated the rationale of previous Fifth Circuit decisions by broadening the
    district court’s discretion to impose a nonguidelines sentence.       He argues,
    therefore, that the sentencing court labored under a misconception that it could
    not sentence him below the Guidelines in the absence of “extraordinary
    circumstances” or based on the court’s disagreement with guidelines policy.
    Because this theory was not argued in the district court, we review for plain
    error. See Campos-Maldonado, 
    531 F.3d 337
    , 339 (5th Cir.), cert. denied, 
    129 S. Ct. 328
     (2008). Nothing in the record suggests that the district court was
    constrained by this court’s precedent from considering all of Rivera-Chavez’s
    arguments for a nonguidelines sentence. Accordingly, there was no plain error.
    See 
    id.
    Citing the Supreme Court’s decisions in Kimbrough and Rita, Rivera-
    Chavez next argues that the within-guidelines sentence imposed in his case
    should not be accorded a presumption of reasonableness.           Rivera-Chavez
    2
    No. 07-41245
    contends that the justification for applying a presumption of reasonableness in
    his case is undercut because U.S.S.G. § 2D1.1, the Guideline used to calculate
    his advisory sentencing guidelines range, was not promulgated according to
    usual Sentencing Commission procedures and did not take into account
    “empirical data and national experience.”           Rivera-Chavez portrays the
    Kimbrough decision as having “suggested” that the appellate presumption
    should not be applied to Guidelines that did not take account of this data and
    experience.
    Our reading of Kimbrough does not reveal any such suggestion. The
    question presented in Kimbrough was whether “a sentence . . . outside the
    guidelines range is per se unreasonable when it is based on a disagreement with
    the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct. at
    564. Speaking specifically to the crack cocaine Guidelines, the Court simply
    ruled that “it would not be an abuse of discretion for a district court to conclude
    when sentencing a particular defendant that the crack/powder disparity yields
    a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a
    mine-run case.”    Id. at 575.   In Kimbrough, the Court said nothing of the
    applicability of the presumption of reasonableness.
    The appellate presumption is therefore applicable in this case. After
    reviewing for procedural errors and considering the substantive reasonableness
    of the sentence, we hold that Rivera-Chavez’s appellate arguments fail to
    establish that his sentence is unreasonable.
    Rivera-Chavez also argues that we should remand his case to the district
    court pursuant to F ED. R. C RIM. P. 36 for correction of the judgment to reflect the
    proper offense of conviction. The indictment in the instant case reflects that
    Rivera-Chavez pleaded guilty to being found in the United States following a
    prior removal and without having obtained consent to reapply for admission.
    The judgment of conviction reflects, however, that Rivera-Chavez was
    adjudicated guilty of “[i]llegal reentry into the United States after having been
    3
    No. 07-41245
    convicted of a felony.” Rivera-Chavez asserts that the offense of illegal reentry
    is distinct from the offense of being found in the United States.
    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).
    In the district court’s judgment, the “Nature of Offense” description, “[i]llegal
    reentry into the United States after having been convicted of a felony,” 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)
    (“[A]n alien who has previously been denied entry or been deported or removed
    commits the offense of illegal reentry when the alien thereafter “enters, attempts
    to enter, or is at any time found in, the United States . . . .” (emphasis added));
    United States v. Vargas-Garcia, 
    434 F.3d 345
    , 349 (5th Cir. 2005) (“The illegal
    reentry statute defines Vargas-Garcia’s offense thusly: a removed alien commits
    illegal reentry when he ‘enters, attempts to enter, or is at any time found in, the
    United States . . . .’” (emphasis added)). Thus, it appears that the district court’s
    judgment uses the term “illegal reentry” intentionally in reference to § 1326
    generally, and such is not a clerical error.1
    Accordingly, we AFFIRM the judgment of the district court.
    1
    As Rivera-Chavez observes, we have noted that attempted reentry under § 1326
    constitutes an offense distinct from either reentry or being found in the United States under
    § 1326, see United States v. Angeles-Mascote, 
    206 F.3d 529
    , 531 (5th Cir. 2000); United States
    v. Martinez-Espinoza, 
    299 F.3d 414
    , 417 (5th Cir. 2002), but such cases, which focus on the
    distinction between actual entry and attempted entry, are inapposite here. In this case, the
    differences between actual and attempted entry are not at issue. Rather, Rivera-Chavez pled
    to being found unlawfully in the United States, and we are called to determine whether the
    judgment contained a clerical error in referring to that offense by its general statutory title.
    4