### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41219

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. GERMAN RIOS GOMEZ, also known as Sealed 19, Defendant–Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:10-CR-70-19

Before BARKSDALE, PRADO, and HAYNES, Circuit Judges. PER CURIAM: * German Rios Gomez 1 (“Gomez”) pleaded guilty to a single drug charge. He appeals various aspects of his sentence. We remand to allow the district court to correct its w ritten judgm e n t t o reflect the charge t o which Gomez pleaded guilty. As to Gomez’s other challenges to his sentence, we affirm. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 10, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 D uring his rearraignm ent, G om ez advis ed the d is trict court that his nam e w as G om ez Rios

. H ow ever, he is ref erred to as R i o s G om ez in p lead ings and in the p res entence rep ort ( PSR)

. In his brief, he is ref erred to as Rio- G om ez. The governm ent s ubm itted a Verif ication of D ef end ant’s N am e bef

ore the d is trict court. The Verif ication noted he had been ref erred to p revious ly as G om ez- Rios , but that Rios G om ez w as the verif ied nam e. Case: 12-41219 Document: 00512465911 Page: 1 Date Filed: 12/10/2013No. 12-41219 I. FACTUAL AND PROCEDURAL BACKGROUND In a superseding indictment, G omez was charged, a l o n g with other coconspirators, with participating in a c o n s p i racy to possess with intent to distribute 500 grams or m ore of methamphetamine, 50 grams or more of actual and methamph e t a m i n e ice, and five kilograms or more of cocaine. In that indictment, the Government gave notice of its intent to seek criminal f orfeiture of a s um o f money from all d efendants jointly and severally equal t o $10,296,000, representing the amount o f proceeds obtained as a result o f the offense alleged in Count I. In a subsequent pleading, the Government advised Gomez that he

w a s charged i n Count I of the superseding indictment, but stated that the essential elements of the offense required proof of a conspiracy involving only 50 grams or more of methamphetamine ice. T h e G o v e r n m e n t , G o m e z , a n d h i s counsel s igned and f

iled in the record a Factual Basis and Stipulation wherein Gomez agreed that the admissions made therein could be used to support his guilty plea t o conspiracy to possess with intent to distribute 50 grams or more of methamphetamine ice. The stipulation reflected that if the case had gone to trial the Government w ould have proved the following facts: On o r about August 2008, agents b egan investigating a drug-trafficking org a n i z a tion in Houston, Texas, that was distributing large quantities of methamph e tamine ice and cocaine in Houston and Beaumont, Texas. In J u n e 2 0 0 9, agents began intercepting the phone conversations of Rogelio P ineda (“Pineda”) t o determine who the members of the organization and their supplier were a n d t h e amount of drugs being distributed. The telephone intercepts continued until February 2010, whe n Pineda was incarcerated. In December 2 009, the a gents began interc e p t i n g the p hone c alls of Jesus Pineda-Espinoza, who w a s the main supplier of the drugs to Pineda a n d his s uccessors, and the interceptions continued until June 2010. During that time, undercover a gents p articipated in undercover purchases of methamphetamine ice from various members of the

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conspiracy a n d c o n ducted many hours of surveillance. Their investigation revealed that there were at least 40 persons i nvolved in t h e o r g a nization and that no less than 113 pounds of methamphetamine ice and 3 1 kilo s o r m o r e o f cocaine were p ossessed with the intent to distribute. G o m e z f urth er s tip ul at e d t h a t h e was a coconspirator who had agreed to distribute quantities of methamphetamine ice and/or cocaine and that he was personally responsible for the possession with intent to distribute and/or the di stribution of more than 50 grams of methamp h e t a m ine ice while being involved in the conspiracy from approximately December 2009 until January 2010. At the conclusion of the rearraignment hearing, the Government advised the district court that it had filed a motion and a preliminary order for f orfeiture and r e quested that the district court sign the order. The Government’s motion reflected that Gomez had been convicted o f Count I of the s u p e r s e d i ng indictment and erroneously stated that he h ad entered into a p lea agreement 2

on January 27, 2011, in which he agreed that t h e a m ount of $10,296,000 represented the a m o u n t o f the p roceeds obtained as a result of the offense for which he had been convicted. The motion further stated that the Government had n ot identified the s pecific assets that were derived from Gomez’s offense of conviction or a ny p roperty o f Gomez’s that could be forfeited, but that a money judgment against Gomez in the amount of $10,296,000 was s ought based on the plea agreement and the amount of money determined to be derived f rom the offense. A signed preliminary order of forfeiture was filed in the record several days before the sentencing h earing. The order stated that Gomez had entered into a plea agreement in which he stipulated that $10,296,000 represented the amount of proceeds o b tained f rom the offense alleged in Count I of the superseding indictment. The order further ordered the forfeiture of that sum by

2 The m inutes of the re a r r a ignm ent ref lected that there w as no p lea agreem ent in G om ez’s cas e. H e entered a guilty p lea w ithout a s ignedp lea agreem ent. 3 Case: 12-41219 Document: 00512465911 Page: 3 Date Filed: 12/10/2013No. 12-41219

Gomez and that the forfeiture would become final at the sentencing and made
p a rt o f the sentence. Prior to agreeing to sign the preliminary judgment o f forfeiture, the district court as k e d d e f e nse c ounsel if there w as any objection, and counsel stated that Gomez had no objection to the preliminary judgment. During the sentencing hearing, an investigating agent testified that during a two-week period, he heard Gomez in w ire-tapped conversations referring to a t l east 18 pounds o f methamphetamine i ce. Although the agent acknowledged that he first intercepted a call to which G o m e z w a s a party on December 29, 2009, he testified that the taped conversations l e d him to believe that Gomez w as a well-established participant in the criminal activity and not

a newcomer to the business. The agent related that Gomez’s activity ended on January 10, 2010, when he w as arrested. The agent rep o r t e d that the

c o n s p iracy involved the distribution of 300 pounds of methamphetamine p e r year. After hearing the testimony a nd the summaries o f the intercepted calls, the district court d etermine d t hat there “was not much evidence” that Gomez

was involved in the conspiracy before Dece m b e r 2009, and that it w ould be difficult t o find that he w as directly involved before then or that the past activity

was reasonably foreseeable. The district court dete rmined that the preponderance of the evidence s howed that Gomez s hould be held accountable for sixteen pounds or 7.26 kilograms of methamphetamine ice. At the c o n c l u sion of the sentencing hearing, the Government asked the district court to sign the final forfeiture o rder, and defense counsel again stated that he had no objection. The district court granted the motion, which p rovided for a personal money judgment against Gomez, finding him jointly and severally liab l e w i t h a ll c o-defendants in this case in the amount of $10,296,000. The written judgment listed as Additional Forfeiture P roperty a money judgment in the amount of $10,296,000.

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C o ntr ary t o th e p l e a e nt ered at the rearraignment hearing, which ref l e c t e d that he was pleading guilty to conspiracy to possess with the intent to distribute 50 grams or more of m ethamphetamin e i c e , the written judgment stated that Gomez ha d p leaded guilty to conspiracy t o distribute 500 grams or more of methamphetamine, 50 grams or more of methamphetamine ice, and f ive grams or more of cocaine. II. JURISDICTION Pursuant to 28 U.S.C. § 1291 a nd 18 U.S.C. § 3742, this is an appeal from

a final judgment o f convi c t i on and sentence entered i nt o by the United States District C ourt f

or the East e r n D i strict of T exas. Gomez filed a timely notice of appeal. III. DISCUSSION Gomez purports t o raise four issues on a ppeal, but actually r aises five. We address each in turn. A. Federal Rule of Criminal Procedure 11 Violation While not specifically listing it as a separate i s sue, Gomez argues that the district court faile d t o c omply with Federal Rule of Criminal Procedure 1 1 (b ) ( 1)(J) because it made no attempt to a dvise him of the possible forfeitu r e during his rearraignment or to ensure that he was aware that it might be part of his sen t e n c e . Any variance from the requirements of Rule 11 is harmless if it does not affect the defendant’s substantial rights. Fed. R

. C rim. P. 11(h); United States v. Reyna , 130 F.3d 1 04, 107 (5th Cir. 1997); United States v. Johnson , 1 F.3d 296, 3 02 (5th Cir. 1993) (en banc) (“[I]f a mistake is m ade by the dist r ict court during the Rule 11 colloquy, it shall b e reviewed for h armless error.”). This court, wh e n faced with an appell a nt claiming the district court failed to c omply with Rule 11, applies a two-question harmless error t est. Reyna , 130 F.3d at 107. First, did the sentencing court vary from the procedu r es

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required by Rule 11. Id

. I f so, did the variance affect the substantial rights of the defendant. Id

. Here, it is clear that Gomez satisfies the f i r s t p r o n g of the test. Federal Rule 1 1(b)(1)(J) provides that the district court must inform the defendant about the potential forfeiture judgment and must determine that he understands that he ma y b e s u bject to the forfeiture of his property. Gomez is correct that the district court did not address this topic during the rearrai gn m e nt p r o c e eding and that it was only br i e f l y referenced when the Government s ought to have its motion for a preliminary forfeiture order signed. A s t o t h e s e c o n d p r o n g , a l t h o u gh t h e d i s t r i c t c o u r t v a r i e d f r o m t h e requirem e n t s o f t he rule, G omez cannot show that the variance affected his substantial rights because he cannot show that there is a reasonable possibility that, but for the error, he would not have pleaded g u i l t y . Se e U nited States v. Dominguez Benitez , 542 U.S. 74, 83 (2004); Johnson , 1 F.3d at 3 02 (“To determine whether a Rule 11 error is harmless (i.e., whether th e e r r or affects substantial rights), w e . . . [evaluate whether] the d i s t r i c t c o urt’s flawed compliance with

. . . Rule 11

. . . may r e a s o n ab ly b e viewed as having been a material factor affecting [defendant]’s decision to plead guilty.” (some alteration in original) (citations and internal quotation marks omitted)). The record reflects that the notice of i ntent to seek a criminal f orfeiture in the form of a money judgment in the amount of $10,296,000 was c ontained in the superseding indictment and that Gomez acknowledged reading a nd discussing the i n dictment with his counsel. It fu r t h e r shows that when the G overnment sought to have the preliminary judgment of forfeiture s igned at the conclusion of the rearraignment hearing, Gomez’s counsel a ffirmatively stated that there

was no objection to the j udgment despite s ome inaccuracies in the motion regarding the existence of a plea agreement. Gomez w as a ware of th e fact that he c o u l d b e subject to a $10,296,000 forfeiture judgment as well as a possible

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maximum fine o f $4,000,000 b ut chose to enter the guilty plea. He cannot show that his rights wer e s u bstantially affected b y the district c o urt’s Rule 11 omission and, thus, he h as not shown reversible error with respect to that claim. See Dominguez Benitez , 542 U.S. at 83; United States v. H ernandez , 470 F. App’x 333, 334–35 (5th Cir. 2012) (unpublished) (per curiam) (holding that failure to

c o m p l y w i th Rule 11(b)(1)(J) was not plain error because the defendant was aware of the possible forfeiture prior to the entry of the guilty plea). B. Oral Pronouncement at Sentencing Gomez c o ntends that the district court erred in including the order of forfeiture in the final judgment because it w a s n o t orally pronounced at sentencing. While conceding that the Government asked the district co u r t to enter the preliminary o r der of forfeiture at the conclusion o f the hearing, he points out that the motion for forfeiture referred to a plea agreement although he h ad no s u ch agreement with the Government. He also complains that there

was no mention of the forfeiture in the P SR o r at sentencing. Gomez argues that review should be under the abuse o f discretion sta n d a r d b e c ause the district court made n o mention of f orfeiture at sentencing, a nd h e had no opportunity to object. G o m e z c ontends that the Government had to p r ove th e c o n n e c ti o n b e tw e e n the amount of the proceeds and his specific criminal act by a preponderance of the evidence. He asserts that, if the di strict court h ad pronounced the judgment

o f f orfeiture orally at sentencing, he would have established that the amount forfeited should h ave been based on s i x t e e n p o unds of methamphetamine ice having a value of no more than $448,000. Thus, he s tates that even if plain error review is applicable, he can show that the error r esulted in substantial harm. The Government argues that review is for plain error because Gomez did not challenge the forfeiture order after receiving ample notice of the a mount that the G overnment would seek and that Gomez a gr e e d to the factual stipulation

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supporting the f

orfeiture i n that amount. It c ontends that c ontrary to Gomez’s argument, the dist r ict court included the forfeiture order at the sentencing hearing, and, thus, the district court did not commit an error under F ederal Rule of Criminal Procedure 32.2. Gomez did n o t o bject to the district c ourt’s failure to make an oral
pr o n o u n cement of the forfeiture order at sentencing. Gomez’s contention that the forfe i t u r e s hould be reviewed for abuse of discretion because the district court did not m ention the forfeiture during sentencing is without merit because the district court specifically asked defense counsel if he had any objection to the proposed forfeiture judgment. Therefore, review is for plain error. See United States v. Marquez , 685 F.3d 501, 510 (5th Cir. 2012). The Comprehensive Forfeiture Act (“CFA”), 21 U.S.C. § 853, provides that

a defendant c onvicted of the crimes such as those at issue here shall forfeit “any property c o n s tituti n g , o r d e riv e d f r o m , a ny p r oceeds the p erson obtained, directly

or indirectly, as the r esult of such violation.” 2 1 U.S.C. § 853(a)(1). Rule 32.2 of the Federal Rules of Criminal Procedure governs th e procedure of a c riminal forfeiture proceeding. See Marquez , 685 F.3d at 509

. T h e i n dictment or information must contain n otice t o the defendant that the government will seek forfeiture of property. Id

. Not ably, the notice n eed not specify the amount of forfeiture the government seeks. Id .; see also Fed. R. Crim. P. 32.2(a). When the Government s eeks a personal money judgment, the court “must determine the amount of money that the defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A). “Unless doing so is impractical, the c ourt m ust enter the pr e li m in ary order [of forfeiture] sufficiently in a dvance o f s entencing to allow the parties to suggest revisions or modifications before th e order becomes final.” Id

. 32.2(b)(2)(B). “The court must include the forfeiture when orally a nnouncing the sentence or must otherwise ensure that the defendant knows of the f orfeiture

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at sentencing .” Id

. 32.2(b)(4)(B) ( e mphasis added). The forfeiture order must be included in the judgment. I d

. As required by this rule, the record r eflects that the district court ensured that G o m e z h ad knowledge of the forfeiture at sentencing. As previously discussed, the superseding indictment, which the district court a scertained that Gomez had r eviewed, contained written notic e o f the possible f orfeiture judgment. Gomez also received oral n otice of the preliminar y f orfeiture judgment and an opportunity to object to it and any factual inaccuracies therein at the conclusion o f h is rearraignment hearing. G omez d i d not file any opposition to the proposed j udgment during the s ix months preceding his sentencing. The record further shows that the Government filed th e Final Order of Forfeiture on J une 17, 2 011, and that sentencing w as held o n June 2 0, 2011. The district court gave counsel an opportunity at s entencing to file an objection, and c ounsel declined to do so. Thus, the r ecord reflects that Gomez was aware of the G overnment’s intent to seek the personal money judgment of $10,296,000 against him and that h e expressly declined to challenge it on two o cca s ions. Gomez’s failure to show that the fo r f e i t u re judgment was erroneous cannot be attributed to the district court’s f ailure to make a n o r a l p ronouncement of the forfeiture j udgment at sentencing. Thus, he did no t d e m o n s trate c lear o r obvious error that affected his substantial rights. See Marquez , 685 F.3d at 510. C. Sufficiency of the Evidence to Support the Forfeiture Judgment Gomez further argues that the e vidence w a s insufficient t o support a forfeiture judgment in the amount of $10,296,000 because t h e r e c o rd did not reflect a factual basis for that amount. He p oints out that the Bill of Particulars filed by the Government did not show how th e a m o unt of $10,296,000 was determined, a nd he contends that the a mount is clearly incorrect because he pleaded guilty to possession with intent to distribute only 50 grams or more of methamphetamine i ce. R elying on Rule 32.2(b)(2) ( C ) , h e argues that, if the

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money is derived from a drug-trafficking offense and the actual property has not been found or is unavailable, the district court must determine the amount to be forfeited, and there is n o indication i n the record that the district court made this determination. Gomez further argues that because this i s a conspiracy case, the f orfeiture amount is limited to the amount of criminal conduct by his coconspirators that

w a s foreseeable to him, although he c ites no Fifth Circuit case law for t h i s proposition. He notes that the district court d etermined that he should only be held accountable for the transactions that took place during the time period of his participation in the conspiracy, D ecember 2009 to J anuary 2010, and that he should b e held r esponsible for only sixteen pounds of methamphetamine ice, having a total value of $448,000. The Government argues that because Gomez agreed to the factual b a sis and stipulation that s e t forth facts 3 supporting the $10,296,000 forfeiture, the district court could r ely on the evidence in the record as relevant and reliable to

s u p p ort the forfeiture judgment. The Government further ass e rt s th at th e r e w a s testimony at sentencing that revealed that the scope of the conspiracy w a s wider than originally thought and that it involved the di stribution of 300 kilograms of methamphetamine ice per year. In his reply brief, Gomez argues that the factual basis w as i nternally inconsistent and was not based o n reliable facts. He points o ut that it referred to a n on - e x istent plea agreement, which held Gomez accountable for proceeds derived from activities that occurred b efore he b eg a n participating in the

3 The s tip ulated facts encom p as s a much larger range of of f ens es than the one to w hich G om ez p lead ed guilty. F or exam ple, the parties s tip ulated that had the m atter p roceed ed to trial, the governm ent w ould have p roven, beyond a reas onable d oubt, the f ollow ing s tip ulated f a cts : at leas t 40 p ers ons were involved in the cons p iracy, at leas t 113 p ound s o f
m etham p hetm aine ice and 31 k ilos of cocaine w ere p os ses s ed with the intent to dis tribute, and that G om ez w as a cocons p irator. G om ez signeda d ocum ent ack now led ging the above. 10 Case: 12-41219 Document: 00512465911 Page: 10 Date Filed: 12/10/2013No. 12-41219

conspiracy and involvement with cocaine, a drug that h e did not plead guilty to possessing with intent to distribute. Rule 32.2 allows the factfi n d e r ’s determination to b e b ased on evidence already in the record and on any additional evidence submitted by the parties. Fed. R. Crim. P. 32.2(b)(1)(B). The Government must establish the r equisite

nexus between the property a nd the offense by a preponderance o f the evidence. Fed. R. Crim. P

. 3 2.2(b)(1); United States v. Gasanova , 332 F.3d 297, 300–01 (5th Cir. 2003). Gomez did not object in the district court to a l a ck of evidence to support the forfeiture j udgment. Thus, review is for plain error. See Marquez , 685 F.3d at 510. Gomez has not prov i d e d any persuasive authority showing that his f o r f e i t u re exposure should have been l imited to $448,000, the value of t h e sixteen pounds of methamphetamine ice that w as attributed to him personally. See Hernandez , 470 F. App’x at 3 35 (finding that defendant had n o t c ited any authority showing that forfeiture amount is limited t o p ersonal involvement in the conspiracy and, thus, did not show plain error in determination of f orfeiture amount). It i s not clear that this c ourt has adopted the f oreseeability concept in t h e context of a drug conspiracy forfeiture case o r how it w ill b e applied. Se e United S tates v. Olguin, 643 F.3d 384, 398 (5th Cir. 2011) (conducting de novo review of the a pplication of § 853 but finding it unnecessary to reach the issue of whether the foreseeability doctrine placed a n y l i m i tations on f orfeiture liability). However, we need not reach the issue here in light o f Gomez’s failure to object to the Government’s motion and proposed judgment indicating that he had agreed to liability for $10,296,000. Evidentiary stipulations or admissions are binding on the part i e s and withdraw a fact issue from contention. See United States v . Banks , 624 F.3d 261, 264 (5th Cir. 2010); Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001). In l ight of his con cessions, we h old that Gomez has not met h is burden

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under plain error r eview of showing that the district court committed clear or obvious error i n holding him a ccountable for the forfeiture amount contained in the unopposed judgment. See Hernandez , 470 F. App’x at 335. D. Excessive Fines Clause Gomez argues, for the first time o n appeal, that the forfeiture judgment vio l a t es the Excessive Fines Clause of the Constitution because it is grossly disproportionate to the gr a v i t y o f the offense in violation of the Eighth Amendment. He p oints out that the maximum statutory fine under 21 U.S.C. § 841(b)(1)(A) and the m ax i m u m fine under the Guidelines w as $ 4,000,000. Because the m aximum f ine is less than the f

orfeiture amount in his case, he argues that the forfeiture judgment violates the Excessive Fines Clause. Because G omez raises his Eighth Amendment argument for the f irst time

on a p p e a l , w e r eview his forfeiture judgment only for p lain e rror. See United States v. Helm , 502 F.3d 366, 367 (5th Cir. 2007). To prevail under plain error review, Gomez would need to prove the district court erred, that the error was clear or obvious (rather than subject t o reasonable dispute), that the e r ror affected his substantial rights, and that the court should exercise it s discretion to correct the error b ecause it seriously affects the fairness, integrity or public reputation of judicial p roceedings. See Pucket v. United S tates , 556 U.S. 129, 135 (2009); Uni t e d S t a t e s v. Reyes , 300 F.3d 555, 558 (5th Cir. 2002). Because Gomez cannot establish that the district court p lainly erred, we affirm the court’s forfeiture order. The Government argue s that no p lain e rror o ccurred because this court has held that the Excessive Fines C lause does not a pply to the proceeds of drug trafficking. The G o v e rnment contends that 21 U.S.C. § 853(a) sets out property that is subject t o forfeiture and distinguishes f orfeitures f

rom fines by allowing the imposition of a fine in addition to the mandatory forfeitur e p r o vided for in the statute. As the government points out, in United States v. Betancourt, 422

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F.3d 240 (5th Cir. 2005), the c o u r t e m p h asized that a forfeiture award is different from a f

ine and held that th e e x c e s s i ve fines provision of the Eighth Amendment did not apply to the f orfeiture of p roperty acquired with drug proceeds. I

d

. at 250. “All proceeds obtained f rom u nlawful conduct a nd property traceable to those proceeds are subject to criminal forfeiture.” Id

. Gomez replies that the Government’s reliance on United States v. Betancourt, 422 F .3d 240 (5th Cir. 2 005), is m isplaced b ecaus e it c onflicts with prior decided law and thus is not binding precedent. Even if we adopted G o m e z ’ s position that Betancourt conflicts with earlier c ase law, the confusion in the law means that any error by the district court could not have been clear or obvious. See Puckett , 556 U.S. 135 (noting that t o be correctable the error must not be subject to reasonable debate);

see also United States v. Mudekunye , 6 46 F.3d 281, 2 9 5

– 9 6 ( 5th Cir. 2011) (stating that if an error i s d e b atable it i s not plain)

. Here, at best, the law is unsettled, foreclosing a finding of plain error. At worst, Betancourt indicates that Gomez cannot establish that there was a n e rror, and thus h e fails at the first prong. Either w ay, he cannot prevail o n plain error r e v i e w u nder his Excessive Fines Clause challenge. E. Errors in the Written Judgment Gomez argues that the judgment s hould be reformed to reflect the correct offense of c onviction. He point s o u t that it incorrectly reflects that he pleaded guilty to the allegations involving 500 grams of methamphetamine and five kilograms of cocaine i n addition to the 50 grams or m ore of methamphetamine ice. H e a s s e r t s that the clerical error can be c orrected on remand pursuant to Federal Rule o f Criminal Procedure 36. The Government agrees that the case should be remanded and the written judgment should be reformed to correct the technical e rror that he possessed illegal drugs i n addition t o the 5 0 grams of methamphetamine ice.

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The written judgment incorrectly reflects that Gomez also pleaded guilty to conspiracy to possess with i ntent to distribute 500 grams o r more of a mixture

or s ubstance containing methamphetamine and five grams of cocaine. The transcript of the rearraignment proceeding r eflects that Gomez p leaded guilty to a conspiracy involving o nly 50 grams or more of methamph e tamine ice. A district court “may at any time correct a c leri cal error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” Fed. R. Crim. P

. 36. A clerical error arises where “the court intend e d o n e t h ing but b y merely clerical mistake or oversight did another.” United States v. Buendia–Rangel , 553 F.3d 378, 3 79 ( 5th Cir. 2008) (citations and internal quotation marks omitted). This c ourt has noted sua sponte that it m ust remand for the purpose of correcting irregularities c ontained in the j udgment. See United States v. J o hnson , 588 F.2d 961, 964 (5th Cir. 1979) (citing F ed. R. Crim. P. 36). In light of the record of the rearraignment and the Government’s a cknowledgment that the writ t en judgment contains a clerical

error that did n ot reflect the actual o ffense of conviction, we remand to the district c ourt for the limited purpose o f correcting t h e judgment to identify correctly the offense of conviction. IV. CONCLUSION For the foregoing reasons, the judgment o f th e district court i s AF F I RMED in part and REMANDED for the limited p u r p o se of correcting the written judgment to correctly identify the offense of conviction.

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