USA v. Roman-Roman, No. 21-51079 (5th Cir. 2022)
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Case: 21-51079 Document: 00516577053 Page: 1 Date Filed: 12/13/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 21-51079 Summary Calendar FILED December 13, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Emanuel Roman-Roman, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:20-CR-2043-1 Before Wiener, Elrod, and Engelhardt, Circuit Judges. Per Curiam:* Emanuel Roman-Roman appeals from the sentence imposed for his conviction of attempted illegal re-entry after removal. Roman-Roman argues that the written judgment contains a clerical error because it does not reflect that when the district court orally pronounced the sentence, it stated that the $100 special assessment was remitted. He asks us to remand the case * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-51079 Document: 00516577053 Page: 2 Date Filed: 12/13/2022 No. 21-51079 pursuant to Federal Rule of Criminal Procedure 36 for correction of the written judgment. Rule 36 provides: “After giving any notice it considers appropriate, the court may at any time correct a clerical error in the judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” Fed. R. Crim. P. 36. A clerical error occurs when the court intends to do one thing but through clerical mistake or oversight does another. United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008). The record shows that the Government did not move to remit the special assessment. Nevertheless, the district court announced that the special assessment against Roman-Roman was remitted. However, the district court lacked the authority to order the assessment remitted sua sponte. See 18 U.S.C. § 3013(a)(2)(A); United States v. Nguyen, 916 F.2d 1016, 1020 (5th Cir. 1990); see also 18 U.S.C. § 3573(1). Roman-Roman fails to show that the district court intended to err by remitting the assessment but through clerical mistake or oversight imposed it. See Buendia-Rangel, 553 F.3d at 379. Rather, we infer that the district court intended to impose the special assessment in the written judgment, notwithstanding its oversight in the oral pronouncement. Thus, Roman-Roman fails to show that the written judgment has a clerical error. See id. To the extent that Roman-Roman seeks correction of the judgment apart from Rule 36, he is not entitled to relief. Because the judgment is in accordance with the law, which mandates the special assessment, see § 3013(a)(2)(A), any irregularity in its imposition does not affect RomanRoman’s substantial rights. See Fed. R. Crim. P. 52(a) & (b). Roman-Roman also contends that the district court’s application of the recidivism enhancement in § 1326(b) is unconstitutional. Nevertheless, 2 Case: 21-51079 Document: 00516577053 Page: 3 Date Filed: 12/13/2022 No. 21-51079 he properly acknowledges that this argument is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He raises the issue only to preserve it for further review. AFFIRMED. 3
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