# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-20482 Summary Calendar

____________ United States of America, Plaintiff—Appellee ,

versus Caleb Jordan McCreless, Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CR-372-1

______________________________ Before B arksdale , H aynes , and W ilson , Circuit Judges

. Per Curiam: * Caleb Jordan McCreless contests his within-Guidelines 110-months’ sentence, imposed following his guilty-plea conviction for aiding and abetting a conspiracy to commit wire fraud and wi re fraud, in violation of 18 U.S.C. §§ 2 (aiding and abetting), 1343 (wire fr aud), 1349 (conspirac y). In doing so, he contends there is insufficient eviden ce to support the court’s application

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED August 26, 2024

Lyle W. Cayce Clerk Case: 23-20482 Document: 56-1 Page: 1 Date Filed: 08/26/2024No. 23-20482

2 of Sentencing Guideline § 2B1.1(b)(8)(B) (quoted infra ). He also asserts — and the Government concedes — that the restitution award in the judgment contains a clerical error and should be corrected. Although post- Booker , the Guidelines are advisory only, the district court must avoid significant procedural error, such as impr operly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 46, 51 (2007). If no such procedural error ex ists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez , 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). Defendant is subject to a four-lev el enhancement under Guideline § 2B1.1 if: his offense involved conduc t described in 18 U.S.C. § 670 (prohibiting theft and illicit trafficking of pre-retail products); and he worked for an organization in the “supply chai n” for a “pre-retail medical product”. U.S.S.G. § 2B1.1(b)(8)(B); see id. cmt. n.1; 18 U.S.C. § 670(e)(1)–(2), (6) (defining quoted terms). McCreless cont ends the record fails to support this enhancement in two ways. He first asserts that, to prove the gloves his company advertised were “pre-retail” medical products, the Gove rnment had to show gloves of that type were unavailable to consumers. Because McCreless did not preserve this issue in district court, review is only for plain error. E.g., United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, he must show a forfeited plain error (clear-orobvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he Case: 23-20482 Document: 56-1 Page: 2 Date Filed: 08/26/2024No. 23-20482

3 makes that showing, we have the discre tion to correct the reversible plain error, but generally should do so only if it “serious ly affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. McCreless, however, offers no authority to support this new assertion. Accordingly, he fails to show the requisite clear-or-obvious error. In the alternative, he asserts that, even if the gloves were pre-retail medical products, there is insufficien t evidence that he worked for an organization in the supply chain for them. The record shows McCreless, acting on behalf of McCreless Enterprise s, agreed to supply bulk quantities of gloves to multiple parties. The court did not clearly err in finding McCreless’ company was active as a “j obber” or “broker” in the supply chain for the gloves. 18 U.S.C. § 670(e)(6). The parties agree the restitution a ward in the written judgment, which was $50,000 higher than the amount ordere d at sentencing, is a clerical error. Our review confirms the error; there fore, a limited remand to correct the error is appropriate under Federal Rule of Criminal Procedure 36. See United States v. Fults , 71 F.4th 328, 329 (5th Cir. 20 23) (allowing limited remand for correction where judgment containe d error in restitution order); see Fed. R. Crim. P. 36.
AFFIRMED in part; REMANDED to correct the clerical error in the judgment. Case: 23-20482 Document: 56-1 Page: 3 Date Filed: 08/26/2024