IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50304

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICARDO VILLA SEPEDA, also known as Kike,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-641-2

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ricardo Villa Sepeda (Sepeda) challenges the substantive 

reasonableness of the sentence imposed for his convictions for one count of 

conspiracy to possess with intent to distribute cocaine and one count of 

possession with intent to distribute cocaine. He was sentenced within the 

guidelines range to 87 months of imprisonment and three years of supervised 

release on each count to run concurrently. Because Sepeda failed to object to 

* 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

February 13, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-50304 Document: 00512532172 Page: 1 Date Filed: 02/13/2014
No. 13-50304

an error at sentencing, we conduct a plain error review. Puckett v. United 

States, 556 U.S. 129, 134-35 (2009); United States v. Peltier, 505 F.3d 389, 391-

92 (5th Cir. 2007).

Sepeda contends that the drug trafficking Guideline, U.S.S.G. § 2D1.1, 

produces a guidelines range that is greater than necessary in a mine-run case 

such as his because it is not based on empirical data and assumes that a larger 

quantity of drugs indicates greater culpability. Sepeda further contends that 

his sentence does not account for his history and characteristics, i.e., his 

mental health issues and lack of education.

The district court was not required to question the empirical grounding 

behind § 2D1.1. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 

2009). The drug quantity and Sepeda’s history and characteristics were before 

the district court, yet the district court imposed a sentence within the 

guidelines range. We have recognized that “the sentencing judge is in a 

superior position to find facts and judge their import under [18 U.S.C.] 

§ 3553(a) with respect to a particular defendant.” United States v. CamposMaldonado, 531 F.3d 337, 339 (5th Cir. 2008). Sepeda has not demonstrated 

that the district court failed to give the proper weight to any particular 

§ 3553(a) factor or that his sentence “represents a clear error of judgment in 

balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th 

Cir. 2009). Therefore, he has failed to rebut the presumption of reasonableness 

that is accorded to his within-guidelines sentence. See id.

In addition, although neither party addresses the issue, the written 

judgment incorrectly reflects that with respect to count three of the indictment, 

Sepeda pleaded guilty to possession with intent to distribute more than 500 

grams of cocaine. The record indicates that Sepeda was charged with, and 

2

 Case: 13-50304 Document: 00512532172 Page: 2 Date Filed: 02/13/2014
No. 13-50304

pleaded guilty to, possession with intent to distribute less than 500 grams of 

cocaine. 

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) (citations and internal quotation marks 

omitted). This court has noted sua sponte that it must remand for the purpose 

of correcting irregularities contained in the judgment. See United States v. 

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

For the foregoing reasons, the judgment of the district court is 

AFFIRMED in part and REMANDED for the limited purpose of correcting the 

written judgment to correctly identify the offense of conviction.

3

 Case: 13-50304 Document: 00512532172 Page: 3 Date Filed: 02/13/2014