U.S.v.Moreno

United States Court of Appeals, Fifth CircuitDec 10, 2008
302 Fed. Appx. 317 (5th Cir. 2008)

No. 07-20613, Conference Calendar.

December 10, 2008.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:07-CR-71-1.

Before DAVIS, WIENER, and PRADO, Circuit Judges.


Juan Raul Moreno pleaded guilty to one count of being unlawfully present in the United States following a prior removal subsequent to an aggravated felony conviction and without first having obtained consent to reapply for admission, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to a 41-month term of imprisonment.

Moreno appeals his conviction for the limited purpose of correcting the judgment under FED.R.CRIM.P. 36, arguing that the judgment should be corrected to reflect that he was convicted of being found in the United States illegally, and not of illegal reentry, the offense that is listed on the judgment. He argues that these 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 CIR oversight did another.'" See United States v. Steen, 55 F.3d 1022, 1025-26 n. 3 (5th Cir. 1995) (quoting Dura-Wood Treating Co. v. Century Forest Indus., Inc., 694 F.2d 112, 114 (5th Cir. 1982)). In the district court's judgment, the "Nature of Offense" description, "[i]llegal reentry after deportation for an aggravated 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 CIR oversight. The district court's judgment uses the term "[i]llegal reentry after deportation for an aggravated felony" intentionally in reference to § 1326 generally; there is no clerical error. Accordingly, we AFFIRM the judgment of the district court.