Case: 14-51220 Document: 00513181656 Page: 1 Date Filed: 09/04/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-51220 FILED
Summary Calendar September 4, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER HURTADO PONCE, also known as Javier Ponce, also known as
Gilbert Granados,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-1160
Before DENNIS, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
The district court sentenced Javier Hurtado Ponce (Hurtado) to a 37-
month term of imprisonment following his guilty plea to attempted illegal
reentry of a deported alien. See 8 U.S.C. § 1326. He argues that the sentence,
which is at the bottom of the advisory guidelines range, is substantively
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-51220
unreasonable because it is greater than necessary to accomplish the goals of
sentencing set forth in 18 U.S.C. § 3553(a).
Hurtado did not present this argument in the district court. Thus, our
review is for plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th
Cir. 2007). Although Hurtado challenges the application of the plain error
standard, he concedes that his argument is foreclosed. See id. To show plain
error, Hurtado must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
As Hurtado acknowledges, his argument challenging the presumption of
reasonableness due to the lack of an empirical basis for U.S.S.G. § 2L1.2 is
foreclosed by our precedent. See United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 & n.7 (5th Cir. 2009); see also United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009). We also have consistently rejected the
“staleness” and “international trespass” arguments that Hurtado asserts. See
United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011); United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Finally, Hurtado’s argument that the district court failed to consider his
personal history and circumstances is contradicted by the record, which
reflects that the district court considered his request for a below-guidelines
sentence based on the staleness of his prior crime-of-violence conviction and
his health problems, the Government’s opposition to that request, and
Hurtado’s allocution. The district court therefore made the requisite
individualized determination based on the facts and arguments presented and
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in light of the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50
(2007).
“[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347 (2007). Hurtado
has not shown that the district court failed to give proper weight to his
arguments or to any particular § 3553(a) factor. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009). He has failed to rebut the presumption of
reasonableness that attaches to his within-guidelines sentence, see Alonzo, 435
F.3d at 554-55, and he has not shown that the district court plainly erred. See
Puckett, 556 U.S. at 135; United States v. Gomez-Herrera, 523 F.3d 554, 565-
66 (5th Cir. 2008).
We also note that there is a clerical error in the judgment. Hurtado was
charged with and pleaded guilty to attempted illegal reentry. The written
judgment describes the offense of conviction as “illegal reentry.” “[T]here is a
clear distinction between actual entry into the United States, and attempted
entry.” United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).
Under Federal Rule of Criminal Procedure 36, a district court may correct a
clerical error in a judgment at any time. Furthermore, we may review clerical
errors in the judgment for the first time on appeal and remand a case to the
district court with instructions to correct the errors in the judgment. See
United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). We remand to
the district court for the limited purpose of correcting the judgment to reflect
that Hurtado was convicted of attempted illegal reentry.
AFFIRMED; REMAND FOR THE LIMITED PURPOSE OF
CORRECTING THE CLERICAL ERROR IN THE JUDGMENT.
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