United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-41227
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO DE PAZ-RIVAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(2:04-CR-72-ALL)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Rigoberto de Paz-Rivas (de Paz) pleaded
guilty to being illegally present in the United States following
deportation and received an eight-month sentence. On appeal, the
sole issue raised by de Paz is an assertion that the judgment
contains a clerical error that must be corrected pursuant to FED.
R. CRIM. P. 36. De Paz contends that the judgment improperly states
that he was adjudicated guilty of an offense under 8 U.S.C. §
*
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this opinion should not be published and is not precedent except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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1326(a) and (b), when it should have reflected that his sentence
arose solely under subsection (a). The government concurs in this
assertion, and the district court has already amended the judgment
on the government’s motion.
The error in question, however, was not a “clerical error.”
A clerical error is one “arising from oversight or omission.” FED.
R. CRIM. P. 36. De Paz was charged in the indictment with an
offense under 8 U.S.C. § 1326(a) and (b), and he pleaded guilty as
charged in the indictment. The judgment’s repetition of this
charge does not constitute an “oversight or omission” to be
remedied under FED. R. CRIM. P. 36. As the “correction” occurred
more than seven days after sentencing, it was not made pursuant to
FED. R. CRIM. P. 35(a).
The district court thus lacked jurisdiction to enter the
amended judgment. The judgment of the district court is VACATED,
and the case is REMANDED to the district court for entry of the
appropriate judgment.
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