### 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

Appeal s 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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: 02/13/2014No. 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 a s 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 l ack 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 distri ct 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 defendan t.” United States v. Campos

Maldonado , 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 § 3 553(a) factor or that his sentence “represents a clear error of judgment i n 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, a lthough neither par ty 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 charge d with, and

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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 F ED

. R. C RIM

. 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 co rrectly identify the offense of conviction.

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