* 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should not be published and is not precedent except under the limited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. 07-41264

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LUIS PALOS-LUNA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-440-1

Before REAVLEY, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Luis Palos-Luna (Palos) was charged with and pleaded guilty to being

found unlawfully in the United States after deportation, in violation of 18 U.S.C.

§ 1326. The district court sentenced Palos to 48 months of imprisonment, below

the properly calculated advisory guidelines range of 57 to 71 months of

imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2009

Charles R. Fulbruge III

Clerk
No. 07-41264

2

Following United States v. Booker, 543 U.S. 220 (2005), we review a

district court’s sentencing decision for reasonableness in light of the sentencing

factors in 18 U.S.C. § 3553(a). See Gall v. United States, 128 S. Ct. 586, 594, 597

(2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

First, this court must “ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.” Gall, 128 S. Ct. at 597. Second, if the

district court’s decision is procedurally sound, this court will “consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard . . . tak[ing] into account the totality of the circumstances, including

the extent of any variance from the Guidelines range.” Id.

Palos argues the sentence is procedurally unreasonable because, under

this court’s legally erroneous precedent extant at the time of sentencing, the

district court necessarily viewed its sentencing discretion as more limited than

the Supreme Court’s decisions in Gall and Kimbrough v. United States, 128 S.

Ct. 558 (2007), show to be the case. He contends that, as a result, the district

court, as a matter of law, failed to properly consider the § 3553(a) factors.

He asserts that under Fifth Circuitlaw atthe time of sentencing, a district

court was forbidden to impose a sentence outside the Guidelines based solely

upon its policy disagreement with the applicable Guidelines or based upon any

factor deemed to have been taken account of by the Guidelines. Palos contends

that the district court was not free to accept his arguments that it should

disagree with the advisory guidelines range on the ground that the Guidelines

systematically over-punished illegal reentrants and thatit should vary from the

Guidelines and impose a 36-month sentence because Palos had received only a
No. 07-41264

3

24-month sentence on the robbery conviction upon which the 16-level

enhancement was based, resulting in a 57- to 71-month guidelines range.

Palos has not shown that this court’s precedent required the district court

to err by foreclosing its ability to consider his argumentthatthe Guidelines overpunished illegal reentrants and resulted in advisory guidelines sentencing

ranges that are greater than necessary to satisfy the § 3553(a) factors. See

United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied,

129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523 F.3d 554, 557-64 (5th

Cir.), cert. denied, ___ S.Ct. ___, 2008 WL 2754087 (2008).

In the district court, Palos asserted generally that the court was not free

to vary from the Guidelines based on factors already taken into account by the

Guidelines. He then requested a variance based on the nonviolent nature of his

illegal reentry offense, his apprehension shortly after he reentered, the 24-month

sentence upon which the U.S.S.G. § 2L1.2 enhancement was based, the age of

his prior offenses, his youthfulness when he committed them, and his recent

crime-free life. However, he did not cite any guidelines provisions that take into

account any of these particular factors, and he did not argue or cite any cases

showing that the district court was not free to vary on these specific grounds

because they were already taken into account by the Guidelines. Nor does Palos

make such an argument or citation in this court. Thus, Palos has not shown

that this court’s precedent required the district courtto err by foreclosing itfrom

considering his argument for a variance because the factors in support of such

a variance were already taken into account by the Guidelines. Moreover, the

record shows that the district court considered these arguments and the

§ 3553(a) factors and, in fact, imposed a sentence below the advisory guidelines

range set forth in the presentence report.

We conclude that the district court committed no procedural error in this

case. Palos does not challenge the substantive reasonableness of the sentence.
No. 07-41264

4

Palos argues that his case should be remanded for correction under FED.

R. CRIM. P. 36 because the judgment does not state the correct offense of

conviction. Palos contends that although he was charged with and pleaded

guilty to the offense of being found unlawfully in the United States after

deportation,the judgmentincorrectly reflects conviction for the offense of illegal

reentry after deportation. 

Rule 36 authorizes this court to correct only clerical errors, which exist

when “the court intended one thing but by merely clerical mistake or oversight

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

In the district court’s judgment, the “Nature of Offense” description, “[i]llegal

reentry after deportation,” 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 Offense” to refer generally to the title of § 1326. Such a method of

reference to § 1326 is not uncommon. In fact, this court has often used the 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 “illegal reentry”intentionally in reference to § 1326 generally, and

such is not a clerical error.

We AFFIRM the judgment of the district court.