* 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should not be published and is not precedent except under the limited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. 08-40096

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN CARLOS PEREZ-RODRIGUEZ, also known as Oscar Garcia-Perez, also

known as Eduardo Saragoza

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-1282-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Juan Carlos Perez-Rodriguez was indicted for violating 18 U.S.C. § 1326

as an alien who had previously been removed from the United States and who

was subsequently found in the United States withoutthe consent ofthe Attorney

General or the Secretary of the Department of Homeland Security. He pleaded

guilty to the charge. The district court entered a judgment, which lists the

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2008

Charles R. Fulbruge III

Clerk
No. 08-40096

2

“nature of the offense” as “[r]e-entry of a deported alien,” and imposed an aboveGuidelines sentence of 40 months in prison.

Perez-Rodriguez avers thatthe sentence imposed by the district court was

procedurally unreasonable because the district courtfailed to adequately explain

why a sentence of 40 months, which was19 months above the maximum of the

Guideline imprisonment range, was not greater than necessary to meet the

purposes of § 3553(a). He avers further that before imposing the 40-month

sentence, the district court should have, but did not, consider the guideline

departure provision in U.S.S.G. § 4A1.3, which addresses underrepresentation

of a defendant’s criminal history score.

The sentence imposed by the district court is typically reviewed for

reasonableness. Gall v. United States, 128 S. Ct. 586, 591 (2007). The Supreme

Court rejected the notion that the district court needs extraordinary

circumstances to justify a deviation from the guidelines range. See id. at 595.

A district court, in sentencing, should use the guidelines sentence range as “the

starting point and the initial benchmark” but should then consider all of the

sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 596. “After settling on

the appropriate sentence, [the sentencing court] must adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing.” Id. at 597. Because Perez-Rodriguez did not

object to the district court’s failure to give adequate reasons, review is for plain

error. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.),

cert. denied, 128 S. Ct. 325 (2007).

The record shows that the district court considered the § 3553 factors,

including Perez-Rodriguez’s history and characteristics, the need for adequate

deterrence, and the need to protect the public from future crimes by PerezRodriguez. Accordingly, the district court adequately stated the reasons for the

sentence. Gall, 128 S. Ct. at 597.
No. 08-40096

3

Perez-Rodriguez’s contention that, in order to comply with the

requirement to calculate the applicable advisory guidelines range, the district

court had to calculate a departure under § 4A1.3 is without merit. This court

specifically rejected this argument in United States v. Mejia-Huerta, 480 F.3d

713, 723 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008).

Lastly, Perez-Rodriguez has not shown that the 40-month sentence was

greater than necessary to meet the purposes of § 3553(a). The district court’s

determination that Perez-Rodriguez’s extensive criminal history, the likelihood

of recidivism, and the need to protectthe public warranted an upward departure

does not constitute error and the extent of the departure was not unreasonable.

See United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004) see also United

States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006). Perez-Rodriguez

has not demonstrated that the district court procedurally erred or that his

sentence was otherwise unreasonable. See Gall, 128 S. Ct. at 596-97.

Perez-Rodriguez avers that, even if this court grants no other relief, the

court should exercise its power pursuant to FED. R. CRIM P. 36 to correct an

alleged clerical error in the judgment. He argues that the judgment

misidentifies the “nature of offense” of conviction as reentry of a deported alien,

when, he contends, it should state that he was convicted of the separate offense

of being unlawfully “found in” the United States following removal or

deportation.

Rule 36 authorizes us to correct only clerical errors, which exist when “the

court intended one thing but by merely clerical mistake or oversight did

another.” See United States v. Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995).

In the district court’s judgment, the “nature of the offense” description,

“[r]e-entry of a deported alien,” so closely tracks the § 1326 title, “[r]eentry of

removed aliens,” that it bears no indicia of the district court having made a

mistake or oversight. Rather, it appears that the district court intended the

“nature of the offense” to refer generally to the title of § 1326. Such a method of
No. 08-40096

1 As Defendant observes, we have noted that attempted reentry under §

1326 constitutes an offense distinct from either reentry or being found in the

United States under § 1326, see United States v. Angeles-Mascote, 206 F.3d 529,

531 (5th Cir. 2000); United States v. Martinez-Espinoza, 299 F.3d 414, 417 (5th

Cir. 2002); but such cases, which focus on the distinction between actual entry

and attempted entry, are inapposite here. In this case, the differences between

actual and attempted entry are not at issue. Rather, Defendant pled to being

found unlawfully in the United States, and we are called to determine whether

the judgment contained a clerical error in referring to that offense by its general

statutory title.

4

reference to § 1326 is not uncommon; in fact, this court has often used the

similar term “illegal reentry” in reference to violations of § 1326 generally. See,

e.g., United States v. Gunera, 479 F.3d 373, 376 (5th Cir. 2007) (“[A]n alien who

has previously been denied entry or been deported or removed commits the

offense of illegal reentry when the alien thereafter “enters, attempts to enter, or

is at any time found in, the United States . . . .”(emphasis added)); United States

v. Vargas-Garcia, 434 F.3d 345, 349 (5th Cir. 2005) (“The illegal reentry statute

defines Vargas-Garcia’s offense thusly: a removed alien commits illegal reentry

when he ‘enters, attempts to enter, or is at any time found in, the United States

. . . .’” (emphasis added)). Thus, it appears that the district court’s judgment

uses the term “re-entry of a deported alien” intentionally in reference to § 1326

generally, and such is not a clerical error.1 Accordingly, we AFFIRM.