USA v. Cervantes, No. 07-41097 (5th Cir. 2008)
Annotate this Case
Download PDF
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-41097 Conference Calendar December 10, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JOSE ROBERTO CERVANTES, also known as Roberto Cervantes, also known as Gilberto Espinosa Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:07-CR-919-ALL Before DAVIS, WIENER, and PRADO, Circuit Judges. PER CURIAM:* Jose Roberto Cervantes 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]e-entry 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41097 Rule 36 provides that the court may at any time, after giving whatever notice it deems appropriate, correct a clerical error in the judgment. The rule authorizes the court to correct only such errors that exist because the court intended one thing but by merely clerical mistake or oversight did another. See United States v. Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995) (quoting DuraWood 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]eentry of a deported alien, closely tracks the § 1326 title, [r]eentry of removed aliens, and, therefore, bears no indication that the district court made a mistake. Rather, it appears that the district court intended the Nature of Offense to refer generally to the title of § 1326. The method of reference to § 1326 in the instant case is not uncommon. 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). Because the district court s judgment in the instant case apparently used the term [r]e-entry of a deported alien intentionally in reference to § 1326 generally, there is no clerical error. Accordingly, we AFFIRM. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
