United States v. De Leon

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 26, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-40537
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-
Appellee,

versus

RAMON DE LEON,

Defendant-
Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-473-2
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Ramon De Leon appeals the sentence imposed following his guilty-plea conviction for

transporting an illegal alien. The sentence was imposed under advisory Sentencing Guidelines

pursuant to United States v. Booker, 543 U.S. 220 (2005), and included an upward departure based

on guideline factors. See U.S.S.G. § 4A1.3.

*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 De Leon contends for the first time on appeal that the court wrongly departed based on

conduct that had already been considered as relevant conduct in the calculation of his offense level.

Only the number of the previously smuggled aliens was counted as relevant conduct, and De Leon

fails to show that it was plain error for the court to base the departure on the frequency and similarity

of prior alien-smuggling episodes, indicating that DeLeon is a likely recidivist. See United States v.

McDowell, 109 F.3d 214, 215, 218 (5th Cir. 1997).

De Leon also contends that retroactive application of Booker’s advisory guideline scheme

violates ex post facto and due process principles. Applying the remedial portion of Booker to a

sentencing hearing where the underlying offense was committed pre-Booker does not violate ex post

facto or due process principles. United States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005). The

conviction and sentence are affirmed.

De Leon argues, and the Government concedes, that the case should be remanded for

correction of a clerical error in the Statement of Reasons which incorrectly states that the district

court departed upward based on “several unadjudicated offenses involving violence.” The case is

remanded solely for correction of the clerical error in the Statement of Reason. FED. R. CRIM. P. 36.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED FOR CORRECTION

OF CLERICAL ERROR