USA v. Vargas-Herrera, No. 07-41265 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-41265 Conference Calendar December 10, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. FELIX FERNANDO VARGAS-HERRERA Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:07-CR-532-1 Before DAVIS, WIENER, and PRADO, Circuit Judges. PER CURIAM:* Felix Fernando Vargas-Herrera (Vargas) appeals from his guilty plea conviction of one count of illegal reentry, in violation of 8 U.S.C. § 1326. He requests only that this court exercise its power pursuant to FED. R. CRIM. P. 36 to correct an alleged clerical error in the judgment. Specifically, he alleges that the judgment of the district court misidentifies the nature of his offense as [r]eentry of a deported alien when it should state that he was illegally found in the United States. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41265 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]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). 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. 2
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