     Case: 13-31003       Document: 00512808803         Page: 1     Date Filed: 10/20/2014




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


                                       No. 13-31003                                 FILED
                                                                             October 20, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                   Plaintiff - Appellee

v.


DEANGELO PIERRE JOHNSON,

                                                  Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 12-CR-237


Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Seeking correction of the district-court judgment, Deangelo Pierre
Johnson maintains it both describes erroneously the nature of the offenses to
which he pleaded guilty and contains two other errors. CONVICTION AND
SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF ERRORS IN
JUDGMENT.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 13-31003



                                       I.
      Johnson pleaded guilty to one count of conspiracy to distribute, and
possess with intent to distribute, 28 grams or more of cocaine base (crack), and
to three counts of distribution and possession with intent to distribute a
quantity of crack. The underlying plea agreement states Johnson agreed to
plead guilty to counts 1, 4, 6, and 10 of the indictment. Count 1 charges he
knowingly and intentionally combined, conspired, confederated, and agreed to
distribute, and possess with intent to distribute, 28 grams or more of crack, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846. Under counts 4, 6, and
10, he was charged with aiding, abetting, and counseling the knowing and
intentional distribution of, and possession with intent to distribute, crack on
three separate dates, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C), and
18 U.S.C. § 2.
      The district court accepted the plea agreement; judgment was entered
on 23 September 2013. The judgment, which states Johnson pleaded guilty to
counts 1, 4, 6, and 10 of the indictment, describes the nature of the offenses as
“Violations of the Federal Controlled Substances Act” (CSA), and lists the
violated provisions of the United States Code. One of the listed provisions was
entered incorrectly (typographical error), and the provisions do not include 18
U.S.C. § 2, despite Johnson’s guilty plea pursuant, inter alia, to this aiding-
and-abetting provision.
                                       II.
      The plea agreement provides that Johnson waived his right to appeal.
The Government advises, however, that it does not seek enforcement of that
provision in this instance.




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                                 No. 13-31003

      The issues regarding the judgment are raised for the first time on appeal.
Johnson asserts, however, that our review is de novo because this court
assessed such errors, also not raised in district court, in United States v.
Johnson, 588 F.2d 961, 964 (5th Cir. 1979). The Government counters that
review should be for abuse of discretion. E.g., United States v. Crawley, 463 F.
App’x 418, 420 n.1 (5th Cir. 2012). In any event, where “claims fail regardless
of the standard of review utilized, we need not decide [the proper standard of
review]”. Id. The issues before us fall within that category: Johnson’s claim
concerning the description of the nature of the offenses fails regardless of the
standard of review; and the other errors are, inter alia, clear error.
                                       A.
      Johnson first contends: the nature-of-the-offense description does not
explain he pleaded guilty to conspiracy and aiding and abetting; rather, it
states he violated the CSA. He seeks amendment of the judgment to reflect
the terms of the plea agreement: that he pleaded guilty to conspiracy and
aiding and abetting, rather than substantive, CSA violations.
      The judgment correctly describes the nature of the offenses as violations
of the CSA because Johnson pleaded guilty to conspiring, and aiding and
abetting efforts, to violate the CSA. 21 U.S.C. § 846 (“Any person who attempts
or conspires to commit any offense defined in [the CSA] shall be subject to the
same penalties as those prescribed for the offense, the commission of which
was the object of the attempt or conspiracy”.); see also United States v. Rabhan,
540 F.3d 344, 348 (5th Cir. 2008) (citation and alterations omitted) (“[18
U.S.C.] § 2 does not establish a separate crime of ‘aiding and abetting.’ Rather,
it allows a jury to find a person guilty of a substantive crime even though that
person did not commit all acts constituting the elements of the crime”.).




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                                  No. 13-31003

                                       B.
      Regarding the other claimed errors, Johnson seeks correction of: the
typographical error in the judgment, listing incorrectly an offended provision
as 21 U.S.C. § 84(b)(1)(C), with the correct provision’s being 21 U.S.C.
§ 841(b)(1)(C); and the omission of 18 U.S.C. § 2 from the violated provisions.
Federal Rule of Criminal Procedure 36, which governs corrections of such
errors in a judgment, provides:        “After giving any notice it considers
appropriate, the court may at any time correct a clerical error in a judgment,
order, or other part of the record, or correct an error in the record arising from
oversight or omission.”
      Regarding the typographical error, the Government, in its response
brief, states Johnson waived this error because he failed to raise it in his
opening brief; on the other hand, the Government noted the error, and takes
the position any party may move for correction.            Furthermore, Johnson
requested the correction in his reply brief.
      The Government will not be prejudiced by the correction of the two
errors. Accordingly, the district court is to correct them on remand.
                                       III.
      For the foregoing reasons, the conviction and sentence are AFFIRMED;
and this matter is REMANDED for correction, consistent with this opinion, of
the two errors in the judgment.




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