United States v. Jorge Amable Ortiz , 350 F. App'x 402 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11685 ELEVENTH CIRCUIT
OCTOBER 27, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-21090-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE AMABLE ORTIZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 27, 2009)
Before BIRCH, BLACK and HULL, Circuit Judges.
PER CURIAM:
Jose Amable Ortiz appeals his 57-month sentence imposed after pleading
guilty to illegal reentry into the United States after deportation for felony
convictions in violation of 8 U.S.C. § 1326(a), (b)(1). There are two issues
presented on appeal, which we address in turn.
I.
Ortiz asserts the sentence imposed was substantively unreasonable under the
factors stated in 18 U.S.C. § 3553(a). Specifically, Ortiz claims he should have
been given a downward variance from the Sentencing Guidelines range because of
the hardships he endured during his voyage from the Dominican Republic to
Florida.
A defendant’s sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).
A sentence is substantively unreasonable “if it does not achieve the purposes of
sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th
Cir. 2008) (quotations omitted). The analysis “involves examining the totality of
the circumstances, including an inquiry into whether the statutory factors in
§ 3553(a) support the sentence in question.” United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008), cert. denied, 129 S. Ct. 2848 (2009). “[T]he party
who challenges the sentence bears the burden of establishing that the sentence is
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unreasonable in light of both [the] record and the factors in section 3553(a).”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Ortiz has not met his burden of demonstrating the district court abused its
discretion. Ortiz fails to identify how his argument, regarding the hardships he
endured during his voyage from the Dominican Republic to Florida, addresses the
purposes of § 3553(a) and why the district court’s decision fails to achieve those
purposes. Ortiz merely asserts, through conclusory statements, that his trauma
entitles him to a downward variance without citing any precedent or policy
arguments.
The district court did not abuse its discretion in imposing a sentence at the
low end of the Sentencing Guidelines range. The district court’s sentence was
reasonable in light of both the record and the § 3553(a) factors. The district court’s
sentence of 57 months fell within the applicable Guidelines range of 57 to 71
months and was less than half the statutory maximum of ten years. See Talley, 431
F.3d at 788 (stating “when the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one”),
United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (emphasizing the
fact the defendant’s sentence was only one-tenth the length of the statutory
maximum sentence). Ortiz’s sentence is reasonable, and we affirm.
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II.
Although neither party raises the issue, we may raise the issue of clerical
errors in the judgment sua sponte and remand with instructions for the district
court correct the errors. United States v. Diaz, 190 F.3d 1247, 1252 (11th Cir.
1999) (noting because a judgment listing an incorrect statute could not stand as
entered, the judgment should be vacated and remanded to the district court for
correction of the clerical error); United States v. Anderton, 136 F.3d 747, 751 (11th
Cir. 1998) (remanding to the district court with directions to correct clerical error
where the statute cited in judgment was incorrect). Remanding to the district court
is essential because “[i]t is fundamental error for a court to enter a judgment of
conviction against a defendant who has not been charged, tried, or found guilty of
the crimes recited in the judgment.” Diaz, 190 F.3d at 1252.
Ortiz was indicted for violating 8 U.S.C. § 1326(a) and (b)(1). This statute
penalizes the reentry of removed aliens. 8 U.S.C. § 1326. During Ortiz’s guilty
plea, the district court identified the charge as § 1326(a) and (b)(1), and Ortiz pled
guilty to that charge. Nevertheless, when the district court issued the judgment, the
applicable statutes were listed as 6 U.S.C. §§ 202(3), 202(4), and 557. Section 202
references the responsibilities of the Secretary for Border and Transportation
Security. On the other hand, section 557 regards the process of the transition into
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the Department of Homeland Security. These statutes do not contain any criminal
provisions, and are inapplicable. See 6 U.S.C. §§ 202, 557. Lastly, as further
evidence of the error, the judgment lists the nature of the offense as “alien, having
previously been removed, was found to be in U.S. without lawful authority.” This
description of the offense demonstrates the district court intended to list § 1326 as
the applicable statute. See 8 U.S.C. § 1326 (“Reentry of removed aliens”).
There is no apparent reason why the correction would harm Ortiz. See Diaz,
190 F.3d at 1252 (stating the only limitation upon correcting the errors is that
correction of the judgment must “not prejudice the defendant in any reversible
way”). If anything, having accurate records will be to Ortiz’s benefit.
Consequently, remand is appropriate because the judgment lists the incorrect
statutes and we vacate and remand for the limited purpose of the correcting the
clerical error. See id.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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