### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41045 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. PEDRO FIGUEROA-NORIEGA, Defendant-Appellant

A ppeal 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: * P e d r o F i g u e r oa-Noriega was convicted of attempted il l e g a l r e e n t r y i n t o t h e United S tates and sentenced to 30 month s o f i m prisonment. In his sole issue

o n appeal, Figueroa-Noriega argues that the district court plainly erred b y presuming t hat the guidelines sentencing r a n g e w a s reasonable. We consider this claim under t he plain error standard of review because it was not presented to the d istrict court. See U nited States v. King , 541 F.3d 1143, 1144 ( 5 th Cir. 2008). Figueroa-Noriega must show an error that is clear or obvious and that U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41045 Document: 00512282151 Page: 1 Date Filed: 06/20/2013No. 12-41045

affects his substantial rights. See Pucke t t v. U n ited States , 556 U.S. 129, 135 (2009). Even if this showing is made, we will exercise our discretion to correct the e rror only if it “seriously affect[s] t he 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 p lain that a “sentencing court d o es n ot enjoy t h e benefit

o f a l e g a l presumption that the Guidelines sentence should apply.” Rita v. United States , 551 U.S. 338, 351 (2007). However, nothing in t he d istrict court’s remarks, viewed i n their entirety, shows t hat it actual l y required F igueroaNoriega to overcome a presumption that the guidelines range was reasonable or refused t o grant a d eparture or variance absent a showing of extraor d i n ary circumstances. See King , 541 F.3d at 1145. Indeed, our revie w o f the record shows that the district court acted properly by considering Figueroa-Noriega’s arguments and the sentencing f a ctors 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 als o n o t e that there is a clerical error in the judgment. Figuer o a - N o riega was charged with and pleaded g uilty to attempted illegal reentry. The written judgment d escribes the offens e o f c onviction as “[b]eing found in the U .S. after pre v ious deportation.” “[T]here is a clear distinction between a ctual entry into the United S tates, and attempted entry.” United S t ates v. Angeles-Mascote, 206 F.3d 529, 531 (5th C ir. 2000). U nder F e d e r a l Rule of Criminal Procedure 36, a district court may correct a clerical error in a judgmen t a t a n y time. F urthermore, we may review clerical errors in the judgment for the f

irst time on appeal and r e m a n d a c a se to the district court with i n s t r u c tions to c orrect the errors in t he judgment. See United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). AFFIRMED; LIMITED REMAND TO CORRECT CLERICAL ERROR IN JUDGMENT.

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