U.S. v. CARRIZALES-NARBAEZ Cileas, 301 Fed.Appx. 394 (5th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee v. Ismael CARRIZALES-NARBAEZ, also known as Ismael Carrizales-Navariz, Defendant-Appellant.

No. 08-40468 Conference Calendar.United States Court of Appeals, Fifth Circuit.
December 10, 2008.

Page 395

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

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 Defendants-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:07-CR-1117-1.

Before DAVIS, WIENER, and PRADO, Circuit Judges.

PER CURIAM:[*]

[*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Ismael Carrizales-Narbaez (Carrizales) pleaded guilty to one count of being unlawfully found in the United States after having previously been deported following an aggravated felony conviction, in violation of 8 U.S.C. § 1326. He was sentenced to 80 months in prison.

Carrizales appeals his conviction for the limited purpose of correcting the judgment under FED.R.CRIM.P. 36, arguing that the judgment should reflect that he was convicted of “being found in” the United States and not of “[r]e-entry of a deported alien,” as listed in the judgment. He argues that “being found in” the United States and “illegal reentry” are distinct offenses.

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) (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, “[r]e-entry of a deported alien,” so closely tracks the § 1326 title, “[r]e-entry 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). It appears that the district court’s judgment uses the term “[r]e-entry of a deported alien” intentionally in reference to § 1326 generally; therefore, there is no clerical error. Accordingly, the judgment of the district court is AFFIRMED.

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