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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40295

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAFAEL SANTOS GALAN-CASTRO, also known as Rafael Hernandez-Castro,

also known as Rafael Hernandez, also known as Rafael Castro, also known as

Rafael Santos Galan, also known as Victor Manuel Hernandez, also known as

Nathan Hernandez, also known as Rafael Fernandez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:08-CR-749-1

Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Rafael Santos Galan-Castro pleaded guilty to illegal reentry. The district

court sentenced him to 57 months of imprisonment, three years of supervised

release, and a $100 special assessment. The district court, expressing concern

that Galan-Castro received ineffective assistance of counsel at sentencing, sua

sponte vacated the judgment against Galan-Castro, appointed the Federal Public

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2010

Lyle W. Cayce

Clerk

Case: 09-40295 Document: 00511074216 Page: 1 Date Filed: 04/08/2010
No. 09-40295

2

Defender to represent Galan-Castro, and set the case for resentencing. The

district court imposed the same sentence on resentencing, which occurred 14

days after the original sentence was imposed.

The parties both argue that the district court lacked authority to

resentence Galan-Castro. This court reviews de novo whether a district court

had authority to resentence a defendant pursuant to Rule 35(a) of the Federal

Rules of Criminal Procedure. United States v. Ross, 557 F.3d 237, 239 (5th Cir.

2009).

“[A] district court’s authority to correct or modify a sentence is limited to

those specific circumstances enumerated by Congress in 18 U.S.C. § 3582([c]).”

United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997); see also United

States v. Lopez, 26 F.3d 512, 516 (5th Cir. 1994) (district court authorized to

modify term of imprisonment only if one or more bases permitted by § 3582(c)

is applicable). The only statutory predicate potentially applicable to the instant

case is § 3582(c)(1)(B), which authorizes a sentencing court to modify a sentence

pursuant to Rule 35 of the Federal Rules of Criminal Procedure.

Assuming for the sake of argument that the amended version of Rule 35,

which became effective while this appeal was pending, made the district court’s

resentencing timely, the district court nevertheless overstepped its authority in

resentencing Galan-Castro. Any sua sponte sentencing modifications must be

made “to correct a sentence that resulted from arithmetical, technical, or other

clear error.” FED. R. CRIM. P. 35(a). Although the district court expressed

concerns about counsel’s performance at sentencing, Galan-Castro’s initial

sentence did not result from clear error. Galan-Castro’s attorney’s commitment

to an argument that could have lengthened Galan-Castro’s sentence did not

actually prejudice Galan-Castro since the district court declined to enhance

Galan-Castro’s sentence based on counsel’s argument. Further, Galan-Castro’s

counsel on resentencing found nothing that would impact Galan-Castro’s

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No. 09-40295

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sentence that had not previously been called to the district court’s attention, and

the district court imposed the same sentence.

Because there was no “clear error,” the district court lacked authority to

resentence Galan-Castro pursuant to Rule 35(a). Ross, 557 F.3d at 239-43.

Therefore, we VACATE and REMAND this case for reinstatement of the original

judgment.

Case: 09-40295 Document: 00511074216 Page: 3 Date Filed: 04/08/2010