USA v. Jose Garcia-Lizanaga, No. 19-10325 (5th Cir. 2020)

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Case: 19-10325 Document: 00515376654 Page: 1 Date Filed: 04/08/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-10325 Summary Calendar FILED April 8, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE GARCIA-LIZANAGA, also known as Chepe, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:18-CR-50-1 Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges. PER CURIAM: * Jose Garcia-Lizanaga appeals the 400-month sentence imposed following his guilty plea conviction for distribution and possession with intent to distribute 500 grams or more of methamphetamine. On appeal, he argues that the district court committed plain error by not imposing a sentence below his calculated guidelines range of 360 months to life in prison. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 19-10325 Document: 00515376654 Page: 2 Date Filed: 04/08/2020 No. 19-10325 Garcia-Lizanaga did not object to his sentence in the district court. Thus, review is for plain error only. See Puckett v. United States, 556 U.S. 129, 134 (2009). The record reveals that the district court did not make an arithmetic error during sentencing but imposed a sentence within the guidelines range calculated after granting the Government’s U.S.S.G. § 5K1.1 motion for a downward departure. Garcia-Lizanaga cannot rely on the clerical error in the Statement of Reasons (SOR), which incorrectly notes that the pre-departure guidelines range of imprisonment was 360 months to life, rather than life. The SOR serves a “record-keeping function” and does not provide any “procedural safeguard[s]” to a defendant. United States v. Shakbazyan, 841 F.3d 286, 292 (5th Cir. 2016) (internal quotation marks and citations omitted). Accordingly, any clerical error in the SOR is harmless, and Garcia-Lizanaga cannot now rely on such an error to claim that the district court committed an arithmetic error by not downwardly departing. See id. The case is REMANDED to the district court for the limited purpose of correcting the clerical error in the SOR. See United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003); FED. R. CRIM. P. 36. The judgment of the district court is AFFIRMED. 2

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