IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41045

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PEDRO FIGUEROA-NORIEGA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-815-1

Before SMITH, DeMOSS, and SOUTHWICK, District Judges.

PER CURIAM:*

PedroFigueroa-Noriega was convicted of attempted illegal reentry into the

United States and sentenced to 30 months of imprisonment. In his sole issue

on appeal, Figueroa-Noriega argues that the district court plainly erred by

presuming that the guidelines sentencing range was reasonable. We consider

this claim under the plain error standard of review because it was not presented

to the district court. See United States v. King, 541 F.3d 1143, 1144 (5th Cir.

2008). Figueroa-Noriega must show an error that is clear or obvious and that

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2013

Lyle W. Cayce

Clerk

* 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: 12-41045 Document: 00512282151 Page: 1 Date Filed: 06/20/2013
No. 12-41045

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135

(2009). Even if this showing is made, we will exercise our discretion to correct

the error only if it “seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.” Id. (internal quotation marks and citation omitted). 

At sentencing, the district court stated that the Guidelines were presumed

to be reasonable. It is plain that a “sentencing court does not enjoy the benefit

of a legal presumption that the Guidelines sentence should apply.” Rita v.

United States, 551 U.S. 338, 351 (2007). However, nothing in the district court’s

remarks, viewed in their entirety, shows that it actually required FigueroaNoriega to overcome a presumption that the guidelines range was reasonable or

refused to grant a departure or variance absent a showing of extraordinary

circumstances. See King, 541 F.3d at 1145. Indeed, our review of the record

shows that the district court acted properly by considering Figueroa-Noriega’s

arguments and the sentencing factors of 18 U.S.C. § 3553 when imposing the

sentence it found to be appropriate. See Gall v. United States, 552 U.S. 38, 50

(2007). Figueroa-Noriega has not shown plain error concerning his sentence.

We also note that there is a clerical error in the judgment. 

Figueroa-Noriega was charged with and pleaded guilty to attempted illegal

reentry. The written judgment describes the offense of conviction as “[b]eing

found in the U.S. after previous deportation.” “[T]here is a clear distinction

between actual entry into the United States, and attempted entry.” United

States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000). Under Federal

Rule of Criminal Procedure 36, a district court may correct a clerical error in a

judgment at any time. Furthermore, we may review clerical errors in the

judgment for the first time on appeal and remand a case to the district court

with instructions to correct the errors in the judgment. See United States v.

Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). 

AFFIRMED; LIMITED REMAND TO CORRECT CLERICAL ERROR IN

JUDGMENT.

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 Case: 12-41045 Document: 00512282151 Page: 2 Date Filed: 06/20/2013