Summary Calendar UNITED STATES OF AMERICA v. Daniel Prieto-Hernandez, also known as Daniel Prieto

* 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should not be published and is not precedent except under the limited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. 08-20244
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DANIEL PRIETO-HERNANDEZ, also known as Daniel Prieto
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-467-1
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Daniel Prieto-Hernandez pleaded guilty for being an alien who was found
present in the United States after having been previously deported following an
aggravated felony conviction, in violation of 8 U.S.C. § 1326. He was sentenced
to 33 months of imprisonment and three years of supervised release.
Prieto-Hernandez argues that his sentence should be vacated as
unreasonable because (1) the district court imposed a variance without first
considering an upward departure under the Guidelines and (2) the district court
United States Court of Appeals
Fifth Circuit
F I L E D
November 26, 2008
Charles R. Fulbruge III
Clerk

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failed to follow the procedural requirements applicable to upward departures
when determining the extent of the variance. A sentence may be overturned if
it is either procedurally or substantively unreasonable. Gall v. United States,
128 S. Ct. 586, 597 (2007). However, there is no basis in law for Prieto-
Hernandez’s contention that the district court was required to consider a
departure under the Guidelines before imposing a variance. See United States
v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007); United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006). Similarly, Prieto-Hernandez’s assertion that the
district court erred by failing to follow the procedural requirements applicable
to an upward departure under the Guidelines is unavailing.
Prieto-Hernandez also appeals his conviction for the purpose of correcting
the judgment under FED. R. CRIM. P. 36. 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 “illegal re-entry of a
previously deported alien following a conviction for an aggravated felony
offense.” Based on his contention that the offense of illegal reentry is distinct
from the offense of being found in the United States, he seeks a remand under
Rule 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).
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, “illegal re-entry of a
previously deported alien,” so closely tracks the § 1326 title, “[r]eentry of

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removed aliens,” that it bears no indicia of the district court having made a
mistake or oversight. See § 1326. As the district court’s judgment uses the term
“illegal re-entry of a previously deported alien” intentionally in reference to
§ 1326 generally, there is no clerical error. Accordingly, we AFFIRM the
judgment of the district court.

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