IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40074

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEJANDRO GUERRERO,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:13-CR-646-3

Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.

PER CURIAM: *

Alejandro Guerrero was convicted of conspiracy to possess with intent to 

distribute heroin. The district court sentenced Guerrero within the Guidelines 

range to 188 months in prison and five years of supervised release. He raises 

various challenges to his sentence and an ineffective assistance of counsel 

claim. Guerrero also requests remand for the correction of a clerical error in 

the judgment. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2016

Lyle W. Cayce

Clerk

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No. 14-40074

2

Guerrero argues that his case should be remanded for resentencing in 

light of the retroactive amendment to U.S.S.G. § 2D1.1 that occurred after he 

was sentenced and that Amendment 782 has rendered his sentence excessive. 

Guerrero did not request that the district court consider the amendment when 

imposing sentence. Thus, we review for plain error. See Puckett v. United 

States, 556 U.S. 129, 134–35 (2009). 

The district court correctly applied the version of the Sentencing 

Guidelines in effect at the time of sentencing. See United States v. RodarteVasquez, 488 F.3d 316, 322 (5th Cir. 2007). In addition, the district court did 

not plainly err by failing to consider at sentencing the then-pending 

amendment when determining Guerrero’s offense level. We deny Guerrero’s 

request for remand for resentencing in light of the amendment. He has already 

filed an 18 U.S.C. § 3582 motion in the district court requesting a sentence 

reduction on that basis, and the motion is currently pending. See United States

v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998); see also United States v. 

Miller, 903 F.2d 341, 349 (5th Cir. 1990). We expect the district court will 

promptly address Guerrero’s motion now that we have resolved this appeal.

Guerrero argues for the first time on appeal that the district court erred 

in failing to apply a mitigating role adjustment under U.S.S.G. § 3B1.2. It 

appears Guerrero’s role within the conspiracy was as a drug courier or 

“delivery man.” A district court does not commit clear error, let alone plain 

error, if it fails to award a mitigating role adjustment for a drug courier. See 

United States v. Jenkins, 487 F.3d 279, 282 (5th Cir. 2007).

The record is not sufficiently developed to evaluate the merits of 

Guerrero’s claim that counsel rendered ineffective assistance by failing to 

request a mitigating role adjustment. See United States v. Isgar, 739 F.3d 829, 

841 (5th Cir. 2014). We decline to consider that claim on direct appeal, leaving 

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No. 14-40074

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it instead to be resolved in a 28 U.S.C. § 2255 proceeding. See Massaro v. 

United States, 538 U.S. 500, 503–09 (2003). 

Guerrero next argues that because he was subject to a 10-year 

mandatory minimum sentence, the district court plainly erred by failing to 

instruct the jury that it was required to make an individual finding regarding 

the quantity of drugs attributable to him. See United States v. Haines, 803 

F.3d 713, 742 (5th Cir. 2015); 21 U.S.C. § 841(b)(1)(A). Although the jury was 

not instructed in this regard, Guerrero cannot establish plain error in 

connection with the claim as he cannot show an effect on his substantial rights. 

A district court’s failure to require an individualized drug quantity finding does 

not affect a defendant’s substantial rights if the sentence is “well above the 

mandatory minimum . . . .” United States v. Benitez, 809 F.3d 243, 250 (5th 

Cir. 2015), cert. denied, 136 S. Ct. 1694 (2016). Here, Guerrero was sentenced 

within the Guidelines range to 188 months’ imprisonment, “well above” the 

120-month statutory minimum, and there is no indication that the district 

court considered the statutory minimum when imposing sentence. See id.

Finally, the judgment provides that Guerrero was convicted of 

possession with intent to distribute heroin, but he was found guilty of

conspiracy to possess with intent to distribute heroin. A clerical error arises 

where “the court intended one thing but by merely clerical mistake or oversight 

did another.” United States v. Buendia–Rangel, 553 F.3d 378, 379 (5th Cir. 

2008). Based on the clerical error in the judgment, we remand to the district 

court for correction of the description of the offense. See United States v. 

Johnson, 588 F.2d 961, 964 (5th Cir. 1979); FED. R. CRIM. P. 36. 

AFFIRMED in part and REMANDED in order to correct the written 

judgment so that it accurately describes the offense of conviction.

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