United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 12, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40479
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE BARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(B-02-CR-774-1)
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Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jorge Bargas appeals his conviction and
sentence imposed following his guilty plea for possession with
intent to distribute marijuana. See 21 U.S.C. § 841(b). Bargas
argues, for the first time on appeal and to preserve the issue for
possible Supreme Court review, that 21 U.S.C. § 841 is facially
unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). As Bargas concedes, this issue is foreclosed by
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
*
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this opinion should not be published and is not precedent except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.
Bargas argues, also for the first time on appeal, that the
district court erred in calculating his criminal history score,
assessing a total of three criminal history points on the basis of
prior offenses committed when he was 17 years old. See U.S.S.G. §
4A1.2(d)(2)(B). The parties agree that the plain error standard of
review governs, and that the district court plainly erred in
assessing the three criminal history points for offenses committed
before Bargas was eighteen years old, because the sentences for the
prior offenses were imposed more than five years before the
commencement of the instant offense. See U.S.S.G. §
4A1.2(d)(2)(B).
Without the assessment of these three criminal history points,
Bargas would have received a criminal history category of IV,
instead of V. This, in turn, would have produced an imprisonment
range under the sentencing guidelines of 57 to 71 months, instead
of the 70 to 87 month range used by the district court at
sentencing. See U.S.S.G. Ch.5, Pt. A, Sentencing Table. The error
affected Bargas’s substantial rights, as it resulted in his
receiving a sentence of 87 months’ imprisonment, a sentence that
exceeded the maximum sentence under Bargas’s appropriate guidelines
sentencing range by 16 months. See United States v. Aderholt, 87
F.3d 740, 744 (5th Cir. 1996). The fairness of the judicial
proceeding was seriously affected because the increase in Bargas’s
sentence was erroneous and substantial. See id. Accordingly, we
vacate Bargas’s sentence and remand the case for resentencing.
2
Bargas also contends, and the government concedes, that the
written judgment states incorrectly that he was convicted of an
offense under 21 U.S.C. § 841(b)(1)(B), rather than an offense
under 21 U.S.C. § 841(b)(1)(C). Bargas asks us to remand the case
to the district court for correction of the judgment pursuant to
FED. R. CRIM. P. 36, and the government agrees that a remand for
correction of this “clerical error” would be the proper course.
Irrespective of the government’s concession on this point, we
are not convinced, based on the record, that the “error” in the
judgment is the sort of mechanical or clerical error that is
subject to correction under Rule 36. See FED. R. CRIM. P. 36.
Inasmuch as Bargas’s indictment charged him with an offense under
21 U.S.C. § 841(b)(1)(B), and Bargas pleaded guilty as charged in
the indictment, the error in the judgment, if any, is not the kind
that is “clearly a clerical one which should be corrected under
FED. R. CRIM. P. 36].” Cf. United States v. Sapp, 439 F.2d 817, 821
(5th Cir. 1971).
AFFIRMED IN PART; VACATED IN PART; AND REMANDED FOR
RESENTENCING.
3