Case: 19-50452 Document: 00515211345 Page: 1 Date Filed: 11/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50452 FILED
c/w No. 19-50609 November 22, 2019
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS ZUNIGA HERNANDES, also known as CACA, also known as Carlos
Zuniga Hernandez,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:06-CR-411-1
Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Carlos Zuniga Hernandes, federal prisoner # 82559-180, moves for leave
to proceed in forma pauperis (IFP) on appeal from the denial of his motion to
correct the presentence report (PSR) pursuant to Federal Rule of Criminal
Procedure 36. When, as here, a district court certifies that an appeal is not
taken in good faith, the appellant may pay the filing fee or challenge the court’s
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-50452 Document: 00515211345 Page: 2 Date Filed: 11/22/2019
No. 19-50452
c/w No. 19-50609
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry into an appellant’s good faith “is limited to whether the
appeal[s involve] legal points arguable on their merits (and therefore not
frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted).
Before this court, Zuniga Hernandes maintains that he was entitled to
relief pursuant to Rule 36 because the district court erroneously imposed
sentencing enhancements despite the fact that Zuniga Hernandes did not
admit the pertinent facts in his plea agreement. He also contends that the
district court erred in denying his Rule 36 motion without providing him with
notice of its intent and an opportunity to respond. Zuniga Hernandes argues
that the district court was authorized to correct the PSR under Rule 36, that
the error should be corrected because it constituted a breach of the plea
agreement, and that the court should order a government official to correct the
PSR under 28 U.S.C. § 1361.
Rule 36 provides that a district court may at any time correct a clerical
error in the record arising from oversight or omission. FED. R. CRIM. P. 36. As
the district court correctly found, Rule 36 permits corrections to errors in a
PSR. See United States v. Mackay, 757 F.3d 195, 200 (5th Cir. 2014). However,
relief under Rule 36 is proper only when “the court intended one thing but by
merely clerical mistake or oversight did another.” United States v. Buendia-
Rangel, 553 F.3d 378, 379 (5th Cir. 2008) (internal quotation marks and
citation omitted). Here, the changes that Zuniga Hernandes sought to have
made to the PSR did not involve the mechanical correction of a clerical error or
concern an error arising from an oversight or omission. Rather, Zuniga
Hernandes asserted that the enhancements were wrongly applied or that the
Government breached the plea agreement because the pertinent facts
2
Case: 19-50452 Document: 00515211345 Page: 3 Date Filed: 11/22/2019
No. 19-50452
c/w No. 19-50609
supporting the enhancements were not admitted by him. Such arguments call
for a legal analysis that is not permitted under Rule 36. See Mackey, 757 F.3d
at 200; Buendia-Rangel, 553 F.3d at 379.
Zuniga Hernandes has not shown error arising from the lack of notice
because he had already had an opportunity to plead his best case. See Bazrowx
v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Moreover, given that he was not
entitled to correction of his PSR, Zuniga Hernandes is unable to establish that
the district court should have issued a writ of mandamus. See § 1361; Randall
D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 766 (5th Cir. 2011).
Thus, Zuniga Hernandes’s appeals do not present a nonfrivolous issue
and have not been brought in good faith. See Howard, 707 F.2d at 220. The
motion for leave to proceed IFP is DENIED, and the appeals are DISMISSED
as frivolous. See Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.
3