     Case: 14-40074      Document: 00513638427         Page: 1    Date Filed: 08/16/2016




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

                                    No. 14-40074                                    FILED
                                  Summary Calendar                            August 16, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEJANDRO GUERRERO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:13-CR-646-3


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Alejandro Guerrero was convicted of conspiracy to possess with intent to
distribute heroin. The district court sentenced Guerrero within the Guidelines
range to 188 months in prison and five years of supervised release. He raises
various challenges to his sentence and an ineffective assistance of counsel
claim. Guerrero also requests remand for the correction of a clerical error in
the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40074

      Guerrero argues that his case should be remanded for resentencing in
light of the retroactive amendment to U.S.S.G. § 2D1.1 that occurred after he
was sentenced and that Amendment 782 has rendered his sentence excessive.
Guerrero did not request that the district court consider the amendment when
imposing sentence. Thus, we review for plain error. See Puckett v. United
States, 556 U.S. 129, 134–35 (2009).
      The district court correctly applied the version of the Sentencing
Guidelines in effect at the time of sentencing. See United States v. Rodarte-
Vasquez, 488 F.3d 316, 322 (5th Cir. 2007). In addition, the district court did
not plainly err by failing to consider at sentencing the then-pending
amendment when determining Guerrero’s offense level. We deny Guerrero’s
request for remand for resentencing in light of the amendment. He has already
filed an 18 U.S.C. § 3582 motion in the district court requesting a sentence
reduction on that basis, and the motion is currently pending. See United States
v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998); see also United States v.
Miller, 903 F.2d 341, 349 (5th Cir. 1990). We expect the district court will
promptly address Guerrero’s motion now that we have resolved this appeal.
      Guerrero argues for the first time on appeal that the district court erred
in failing to apply a mitigating role adjustment under U.S.S.G. § 3B1.2. It
appears Guerrero’s role within the conspiracy was as a drug courier or
“delivery man.” A district court does not commit clear error, let alone plain
error, if it fails to award a mitigating role adjustment for a drug courier. See
United States v. Jenkins, 487 F.3d 279, 282 (5th Cir. 2007).
      The record is not sufficiently developed to evaluate the merits of
Guerrero’s claim that counsel rendered ineffective assistance by failing to
request a mitigating role adjustment. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014). We decline to consider that claim on direct appeal, leaving



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                                  No. 14-40074

it instead to be resolved in a 28 U.S.C. § 2255 proceeding. See Massaro v.
United States, 538 U.S. 500, 503–09 (2003).
      Guerrero next argues that because he was subject to a 10-year
mandatory minimum sentence, the district court plainly erred by failing to
instruct the jury that it was required to make an individual finding regarding
the quantity of drugs attributable to him. See United States v. Haines, 803
F.3d 713, 742 (5th Cir. 2015); 21 U.S.C. § 841(b)(1)(A). Although the jury was
not instructed in this regard, Guerrero cannot establish plain error in
connection with the claim as he cannot show an effect on his substantial rights.
A district court’s failure to require an individualized drug quantity finding does
not affect a defendant’s substantial rights if the sentence is “well above the
mandatory minimum . . . .” United States v. Benitez, 809 F.3d 243, 250 (5th
Cir. 2015), cert. denied, 136 S. Ct. 1694 (2016). Here, Guerrero was sentenced
within the Guidelines range to 188 months’ imprisonment, “well above” the
120-month statutory minimum, and there is no indication that the district
court considered the statutory minimum when imposing sentence. See id.
      Finally, the judgment provides that Guerrero was convicted of
possession with intent to distribute heroin, but he was found guilty of
conspiracy to possess with intent to distribute heroin. A clerical error arises
where “the court intended one thing but by merely clerical mistake or oversight
did another.” United States v. Buendia–Rangel, 553 F.3d 378, 379 (5th Cir.
2008). Based on the clerical error in the judgment, we remand to the district
court for correction of the description of the offense. See United States v.
Johnson, 588 F.2d 961, 964 (5th Cir. 1979); FED. R. CRIM. P. 36.
      AFFIRMED in part and REMANDED in order to correct the written
judgment so that it accurately describes the offense of conviction.




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