United States Court of Appeals

for the Fifth Circuit

No. 21-40108

United States of America, 

Plaintiff—Appellee,

versus

Luis Mascarenas-Jaramillo, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas 

No. 7:18-cr-01422-4

Before King, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Luis Mascarenas-Jaramillo pleaded guilty to a charge of conspiracy to 

possess with intent to distribute 500 grams or more of a mixture or substance 

containing a detectable amount of methamphetamine. On appeal, he argues 

a clerical error in the judgment warrants remanding to the district court. He 

also challenges the inclusion of two loads of seized methamphetamine to 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 6, 2022

Lyle W. Cayce

Clerk

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calculate his base offense level. We affirm, but we remand for the limited 

purpose of correcting a clerical error in the judgment and PSR. 

I.

Mascarenas-Jaramillo was involved with a scheme to import and

distribute methamphetamine and methamphetamine mixture. His 

involvement with the crime began when his brother asked MascarenasJaramillo to “drive him into the United States in order for him to meet with 

certain individuals.” This led to his driving trucks back to Mexico that had 

been used to transport methamphetamine into the United States. He 

admitted the scheme involved distributing liquid methamphetamine by 

siphoning the drug out of a vehicle’s gas tank into another and that he 

conspired “to possess with intent to distribute more than 500 grams of 

methamphetamine.” 

Mascarenas-Jaramillo pleaded guilty to a charge of conspiracy to 

possess with intent to distribute 500 grams or more of a mixture or substance 

containing a detectable amount of methamphetamine in violation of 21 

U.S.C. §§ 846 and 841(a), (b)(1)(A)(viii). The probation officer concluded 

Mascarenas-Jaramillo should be held accountable for (1) 310.4 kilograms of 

methamphetamine seized on January 6, 2018, (2) 214.9 kilograms of 

methamphetamine seized on January 7, 2018, and (3) 417 kilograms of 

methamphetamine mixture seized on August 2, 2018. This resulted in a base 

offense level of 38. With a total offense level of 38 and criminal history 

category of I, Mascarenas-Jaramillo’s guidelines range was 235 to 293 

months’ imprisonment.1

1 In the initial version of the PSR, Mascarenas-Jaramillo’s total offense level was 

reduced to 36 due to his acceptance of responsibility under U.S.S.G. § 3E1.1(a). When 

combined with his criminal history category of I this yielded a recommended guidelines 

range of 188 to 235 months’ imprisonment. However, the PSR was later supplemented with 

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Mascarenas-Jaramillo objected to the PSR, arguing he should not be 

held accountable for the methamphetamine seized on January 7 and August 

2 because he had no knowledge of or involvement with those loads of 

methamphetamine.2 In this objection, Mascarenas-Jaramillo conceded 

involvement with the methamphetamine seized on January 6, 2018. At 

sentencing, Mascarenas-Jaramillo requested a downward departure because 

of his limited knowledge of the operation. The district court agreed the 

record did not show Mascarenas-Jaramillo personally transported drugs but 

ultimately concluded he was not substantially less culpable than the average 

participant. Though his brother was higher in the organization, MascarenasJaramillo acted as his brother’s “thirdhand” and was therefore “intimately 

aware of all that[] [was] going on.” Additionally, the court stated that 

Mascarenas-Jaramillo was present when drugs were moved from one vehicle 

to another, that he knew who the drivers were, and that he had a good sense 

of how much was being transported. 

The government moved for a safety valve reduction under U.S.S.G. 

§ 5C1.2(a), which made Mascarenas-Jaramillo eligible for a two-level 

a recommended two-level enhancement under U.S.S.G. § 2D1.1(b)(5) because the offense 

involved the importation of methamphetamine that Mascarenas-Jaramillo knew was 

unlawfully imported. Mascarenas-Jaramillo objected to this enhancement but did not 

appeal it. 

2 Mascarenas-Jaramillo also argued he should receive a mitigating role adjustment 

under U.S.S.G § 3B1.2 because he acted at the direction of his brother, did not know the 

scope or structure of the conspiracy, and did not actually transport any narcotics into the 

United States. However, the probation officer declined the adjustment, determining

Mascarenas-Jaramillo and his brother were equally culpable. The probation officer also 

indicated Mascarenas-Jaramillo should be held accountable for all three loads of 

methamphetamine because he knew his brother was smuggling narcotics for a drug 

trafficking organization. Mascarenas-Jaramillo reiterated his objection to these findings at 

sentencing and they were implicitly denied. The denial of the mitigating role adjustment 

has not been appealed. 

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reduction under § 2D1.1(b)(18), as well as an additional one-level reduction, 

pursuant to § 3E1.1(b), for acceptance of responsibility. The district court 

adopted those recommendations, lowering Mascarenas-Jaramillo’s total 

offense level to 35 and reducing his recommended guidelines range to 168 to 

210 months. 

The district court sentenced Mascarenas-Jaramillo at the bottom of 

that range to 168 months’ imprisonment and no supervised release. 

Mascarenas-Jaramillo timely appealed. 

II.

Mascarenas-Jaramillo first argues clerical errors in the PSR and 

judgment must be corrected on remand. The indictment charged 

Mascarenas-Jaramillo with conspiracy to possess with intent to distribute 500

grams or more of a mixture or substance containing a detectable amount of 

methamphetamine. But the written judgment describes the “[n]ature of [the]

[o]ffense” as “[c]onspiracy to possess with intent to distribute 500 grams or 

more of methamphetamine.” Because the judgment’s description of the 

offense is not identical to the indictment’s description, Mascarenas-Jaramillo 

argues that we must remand to correct the judgment. We agree.

We “may at any time correct a clerical 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. Such errors occur when “the 

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

another.” United States v. Steen, 55 F.3d 1022, 1026 n.3 (5th Cir. 1995) 

(citation omitted). Remand under Rule 36 is appropriate only “to make 

minor corrections . . . such as fixing typos.” United States v. Martin, 651 F. 

App’x 265, 267 (5th Cir. 2016).

Mascarenas-Jaramillo argues that this case is like United States v. 

McLean, 850 F. App’x 296 (5th Cir. 2021). In that unpublished opinion, we 

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remanded to correct a judgment that mistakenly identified the crime of 

conviction as possession with intent to distribute 50 grams or more of 

methamphetamine, rather than a methamphetamine mixture. McLean, 850 

F. App’x at 296–97. Because the judgment did not accurately reflect the 

offense to which the defendant pleaded guilty, remand was warranted. Ibid.

Remand is warranted here, too. Mascarenas-Jaramillo pleaded guilty

to a charge of conspiracy to possess with intent to distribute 500 grams or 

more of “a mixture or substance containing a detectable amount of 

methamphetamine,” not pure methamphetamine, as the judgment and PSR 

mistakenly state. This is the type of purely clerical error for which remand 

under Rule 36 is appropriate. While the district court correctly identified the 

statutes of conviction and punishment for the offense, Mascarenas-Jaramillo 

is entitled to have the judgment against him accurately reflect the offense to 

which he pleaded guilty. See United States v. Mackay, 757 F.3d 195, 196 (5th 

Cir. 2014) (remanding for correction of an erroneous PSR even though the 

error “had no effect on [the defendant’s] conviction or sentence”). And 

since the PSR is “part of the record” under Rule 36, he is also entitled to its 

correction. Id. at 200 (holding that a PSR is “part of the record” within the 

meaning of Rule 36). Accordingly, we remand for the limited purpose of 

correcting the description of the offense contained in the judgment and PSR. 

III.

Mascarenas-Jaramillo next argues the district court erred by holding 

him accountable for the methamphetamine seized on January 7 and August 

2, 2018. He argues the PSR lacked sufficient indicia of reliability to hold him 

accountable for these loads of methamphetamine because there was no 

indication he foresaw those drug amounts as part of the charged conspiracy. 

We review the district court’s interpretation or application of the 

Sentencing Guidelines de novo and its factual findings for clear error. United 

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States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019). “Factual findings are 

‘clearly erroneous only if, based on the entire evidence, we are left with the 

definite and firm conviction that a mistake has been committed.’” United 

States v. Barry, 978 F.3d 214, 217 (5th Cir. 2020) (citation omitted). “There 

is no clear error if the district court’s finding is plausible in light of the record 

as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 

2008) (citation omitted).

“Even if an error is established, it must be disregarded ‘if it is 

harmless, i.e., if it does not affect substantial rights.’” United States v. Moton, 

951 F.3d 639, 644 (5th Cir. 2020) (citation omitted). Procedural sentencing 

errors are harmless if they do not affect the guidelines range. See, e.g., Barry, 

978 F.3d at 217 n.1; United States v. Chon, 713 F.3d 812, 822 (5th Cir. 2013) 

(noting that certain alleged errors in calculating the offense level were 

harmless because they did not alter the sentencing range). 

Here, the amount of methamphetamine seized on January 6 is 

sufficient, standing alone, to support Mascarenas-Jaramillo’s base offense 

level of 38 and sentence of 168 months. U.S.S.G. § 2D1.1(c)(1); MascarenasJaramillo admitted his involvement with the January 6 load and does not 

contest it on appeal. As a result, any alleged error is harmless because it did 

not affect his guidelines range. See United States v. Mora, 843 F. App’x 613, 

615 (5th Cir. 2021) (unpublished) (alleged error was harmless where the 

inclusion of a certain load of methamphetamine in the drug quantity 

calculation did not affect the defendant’s guidelines range).

IV.

Finally, Mascarenas-Jaramillo argues the district court failed to make 

particularized findings regarding the scope of the conspiracy and whether any 

of the drug amounts were foreseeable to him. He faults the district court for 

relying on the PSR and not making more particular findings about his 

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involvement in the conspiracy. He argues, without explanation, that had the 

court included only the drugs he “specifically knew about,” his total offense 

level would have been 9 and his guidelines range would have decreased to 4 

to 10 months. (citing U.S.S.G. § 2D1.1(c)(7)).

Mascarenas-Jaramillo failed to make this argument below, so we 

review it for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

To establish plain error Mascarenas-Jaramillo must show “a clear or obvious 

legal error that affects his substantial rights and seriously affects the fairness, 

integrity, or public reputation of the judicial proceedings.” United States v. 

Suarez, 879 F.3d 626, 630 (cleaned up).

The district court was not required to make particularized findings to 

hold Mascarenas-Jaramillo accountable for the methamphetamine seized on 

January 6, 2018. See U.S.S.G. § 1B1.3(a)(1)(A) & comment (n.3(D)). 

Mascarenas-Jaramillo admitted to his involvement with this load of 

methamphetamine. His counsel also acknowledged Mascarenas-Jaramillo’s 

“involvement regarding the January 6, 2018 drug seizures.” As stated 

previously, that amount is sufficient to trigger his base offense level and 

guidelines range. See U.S.S.G. § 2D1.1(c)(1). So, Mascarenas-Jaramillo’s 

argument that he might be subject to a range of only 4 to 10 months lacks any 

basis. What is more, the district court did make particularized findings about 

the scope of the conspiracy and what Mascarenas-Jaramillo could foresee.3

Accordingly, the district court did not err, plainly or otherwise.

3 In response to Mascarenas-Jaramillo’s requested mitigating role adjustment, the 

district court found: his brother was higher in the organization; he was his brother’s

“thirdhand” and therefore was “intimately aware of all that’s going on[;]” he was present 

when drugs were moved between vehicles; he knew the drivers; and he had a good sense of 

how much was being transported. 

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V.

The district court’s judgment is AFFIRMED. We REMAND for 

the limited purpose of correcting the clerical error in the judgment and PSR.

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