Conference Calendar UNITED STATES OF AMERICA v. Macrino Garcia-Trejo

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-41203
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MACRINO GARCIA-TREJO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-385-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Macrino Garcia-Trejo pleaded guilty to being “found in the United States”
following a prior removal and without having obtained consent to reapply for
admission, in violation of 8 U.S.C. § 1326. He was indicted for being found in the
United States in violation of § 1326, and the judgment states, under the heading
“Nature of Offense,” that he was adjudicated guilty of “[i]llegal [r]e-[e]ntry.”
Garcia-Trejo asserts that the offense of illegal reentry is distinct from the offense
of being found in the United States. He seeks a remand pursuant to FED.
United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2008
Charles R. Fulbruge III
Clerk

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No. 07-41203
2
R. CRIM. P. 36 for correction of the judgment to reflect the proper offense of
conviction.
Rule 36 authorizes us to correct only clerical errors, which occur when
“‘the court intended one thing but by merely clerical mistake or oversight did
another.’” United States v. Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995)
(quoting Dura-Wood Treating Co. v. Century Forest Indus., Inc., 694 F.2d 112,
114 (5th Cir. 1982)). Section 1326 is entitled “[r]eentry of removed aliens” and
provides, inter alia, that any alien who has been denied admission, excluded,
deported, or removed, and who subsequently enters, attempts to enter, “or is at
any time found in, the United States” without having obtained required consent
or without showing that such consent is not required, is subject to certain
criminal penalties. § 1326(a), (b).
The judgment’s “Nature of Offense” description, “[i]llegal [r]e-[e]ntry,” so
closely tracks the § 1326 title, “[r]eentry of removed aliens,” that it bears no
indicia of the district court having made a mistake or oversight. See § 1326. The
district court’s judgment uses the term “[r]e-[e]ntry” intentionally in reference
to § 1326 generally; there is no clerical error. Accordingly, we AFFIRM the
judgment of the district court.

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