IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51220

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER HURTADO PONCE, also known as Javier Ponce, also known as 

Gilbert Granados,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:14-CR-1160

Before DENNIS, PRADO, and ELROD, Circuit Judges. 

PER CURIAM:*

The district court sentenced Javier Hurtado Ponce (Hurtado) to a 37-

month term of imprisonment following his guilty plea to attempted illegal 

reentry of a deported alien. See 8 U.S.C. § 1326. He argues that the sentence, 

which is at the bottom of the advisory guidelines range, is substantively 

 

* 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

September 4, 2015

Lyle W. Cayce

Clerk

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No. 14-51220

2

unreasonable because it is greater than necessary to accomplish the goals of 

sentencing set forth in 18 U.S.C. § 3553(a).

Hurtado did not present this argument in the district court. Thus, our 

review is for plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th 

Cir. 2007). Although Hurtado challenges the application of the plain error 

standard, he concedes that his argument is foreclosed. See id. To show plain 

error, Hurtado must show a forfeited error that is clear or obvious and that 

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

(2009). If he makes such a showing, we have the discretion to correct the error 

but only if it seriously affects the fairness, integrity, or public reputation of 

judicial proceedings. See id.

As Hurtado acknowledges, his argument challenging the presumption of 

reasonableness due to the lack of an empirical basis for U.S.S.G. § 2L1.2 is 

foreclosed by our precedent. See United States v. Mondragon-Santiago, 564 

F.3d 357, 366-67 & n.7 (5th Cir. 2009); see also United States v. Duarte, 569 

F.3d 528, 529-31 (5th Cir. 2009). We also have consistently rejected the 

“staleness” and “international trespass” arguments that Hurtado asserts. See

United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011); United States v. 

Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).

Finally, Hurtado’s argument that the district court failed to consider his 

personal history and circumstances is contradicted by the record, which 

reflects that the district court considered his request for a below-guidelines 

sentence based on the staleness of his prior crime-of-violence conviction and 

his health problems, the Government’s opposition to that request, and 

Hurtado’s allocution. The district court therefore made the requisite 

individualized determination based on the facts and arguments presented and 

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in light of the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50 

(2007). 

“[A] sentence within a properly calculated Guideline range is 

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th 

Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347 (2007). Hurtado

has not shown that the district court failed to give proper weight to his 

arguments or to any particular § 3553(a) factor. See United States v. Cooks, 

589 F.3d 173, 186 (5th Cir. 2009). He has failed to rebut the presumption of

reasonableness that attaches to his within-guidelines sentence, see Alonzo, 435 

F.3d at 554-55, and he has not shown that the district court plainly erred. See 

Puckett, 556 U.S. at 135; United States v. Gomez-Herrera, 523 F.3d 554, 565-

66 (5th Cir. 2008). 

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

charged with and pleaded guilty to attempted illegal reentry. The written 

judgment describes the offense of conviction as “illegal reentry.” “[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). We remand to 

the district court for the limited purpose of correcting the judgment to reflect 

that Hurtado was convicted of attempted illegal reentry.

 AFFIRMED; REMAND FOR THE LIMITED PURPOSE OF 

CORRECTING THE CLERICAL ERROR IN THE JUDGMENT.

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