Summary Calendar UNITED STATES OF AMERICA v. Francisco Javier Prieto-Hernandez

* 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should not be published and is not precedent except under the limited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. 07-40868
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FRANCISCO JAVIER PRIETO-HERNANDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-563-1
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Javier Prieto-Hernandez 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 the Offense,” that he was adjudicated guilty of “re-
entry of a deported alien.” Prieto-Hernandez asserts that the offense of illegal
reentry is distinct from the offense of being found in the United States. He seeks
United States Court of Appeals
Fifth Circuit
F I L E D
October 27, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40868
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a remand pursuant to FED. 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).
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.
8 U.S.C. § 1326(a), (b).
The judgment’s “nature of the offense” description, “[r]e-entry of a
deported alien,” 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 “re-entry of a 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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