          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 January 8, 2009
                                No. 07-41264
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

LUIS PALOS-LUNA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:07-CR-440-1


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Luis Palos-Luna (Palos) was charged with and pleaded guilty to being
found unlawfully in the United States after deportation, in violation of 18 U.S.C.
§ 1326. The district court sentenced Palos to 48 months of imprisonment, below
the properly calculated advisory guidelines range of 57 to 71 months of
imprisonment.




      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-41264

      Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decision for reasonableness in light of the sentencing
factors in 18 U.S.C. § 3553(a). See Gall v. United States, 128 S. Ct. 586, 594, 597
(2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
First, this court must “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence -- including an explanation for any
deviation from the Guidelines range.” Gall, 128 S. Ct. at 597. Second, if the
district court’s decision is procedurally sound, this court will “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard . . . tak[ing] into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id.
      Palos argues the sentence is procedurally unreasonable because, under
this court’s legally erroneous precedent extant at the time of sentencing, the
district court necessarily viewed its sentencing discretion as more limited than
the Supreme Court’s decisions in Gall and Kimbrough v. United States, 128 S.
Ct. 558 (2007), show to be the case. He contends that, as a result, the district
court, as a matter of law, failed to properly consider the § 3553(a) factors.
      He asserts that under Fifth Circuit law at the time of sentencing, a district
court was forbidden to impose a sentence outside the Guidelines based solely
upon its policy disagreement with the applicable Guidelines or based upon any
factor deemed to have been taken account of by the Guidelines. Palos contends
that the district court was not free to accept his arguments that it should
disagree with the advisory guidelines range on the ground that the Guidelines
systematically over-punished illegal reentrants and that it should vary from the
Guidelines and impose a 36-month sentence because Palos had received only a



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                                   No. 07-41264

24-month sentence on the robbery conviction upon which the 16-level
enhancement was based, resulting in a 57- to 71-month guidelines range.
      Palos has not shown that this court’s precedent required the district court
to err by foreclosing its ability to consider his argument that the Guidelines over-
punished illegal reentrants and resulted in advisory guidelines sentencing
ranges that are greater than necessary to satisfy the § 3553(a) factors. See
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied,
129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523 F.3d 554, 557-64 (5th
Cir.), cert. denied, ___ S.Ct. ___, 2008 WL 2754087 (2008).
      In the district court, Palos asserted generally that the court was not free
to vary from the Guidelines based on factors already taken into account by the
Guidelines. He then requested a variance based on the nonviolent nature of his
illegal reentry offense, his apprehension shortly after he reentered, the 24-month
sentence upon which the U.S.S.G. § 2L1.2 enhancement was based, the age of
his prior offenses, his youthfulness when he committed them, and his recent
crime-free life. However, he did not cite any guidelines provisions that take into
account any of these particular factors, and he did not argue or cite any cases
showing that the district court was not free to vary on these specific grounds
because they were already taken into account by the Guidelines. Nor does Palos
make such an argument or citation in this court. Thus, Palos has not shown
that this court’s precedent required the district court to err by foreclosing it from
considering his argument for a variance because the factors in support of such
a variance were already taken into account by the Guidelines. Moreover, the
record shows that the district court considered these arguments and the
§ 3553(a) factors and, in fact, imposed a sentence below the advisory guidelines
range set forth in the presentence report.
      We conclude that the district court committed no procedural error in this
case. Palos does not challenge the substantive reasonableness of the sentence.



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                                   No. 07-41264

      Palos argues that his case should be remanded for correction under FED.
R. CRIM. P. 36 because the judgment does not state the correct offense of
conviction. Palos contends that although he was charged with and pleaded
guilty to the offense of being found unlawfully in the United States after
deportation, the judgment incorrectly reflects conviction for the offense of illegal
reentry after deportation.
      Rule 36 authorizes this court to correct only clerical errors, which exist
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).
In the district court’s judgment, the “Nature of Offense” description, “[i]llegal
reentry after deportation,” 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. Rather, it appears that the district court intended the
“Nature of Offense” to refer generally to the title of § 1326. Such a method of
reference to § 1326 is not uncommon. In fact, this court has often used the term
“illegal reentry” in reference to violations of § 1326 generally. See, e.g., United
States v. Gunera, 479 F.3d 373, 376 (5th Cir. 2007) (“[A]n alien who has
previously been denied entry or been deported or removed commits the offense
of illegal reentry when the alien thereafter ‘enters, attempts to enter, or is at any
time found in, the United States . . . .’” (emphasis added)); United States v.
Vargas-Garcia, 434 F.3d 345, 349 (5th Cir. 2005) (“The illegal reentry statute
defines Vargas-Garcia’s offense thusly: a removed alien commits illegal reentry
when he ‘enters, attempts to enter, or is at any time found in, the United States
. . . .’” (emphasis added)). Thus, it appears that the district court’s judgment
uses the term “illegal reentry” intentionally in reference to § 1326 generally, and
such is not a clerical error.
      We AFFIRM the judgment of the district court.




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