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

                                                 FILED
                                                                          February 19, 2009
                                     No. 07-41245
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

MARCIO JOAQUIN RIVERA-CHAVEZ, also known as Marcio Joaquin Rivera

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 3:07-CR-20-ALL


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Marcio Joaquin Rivera-Chavez appeals the 77-month sentence imposed
following his guilty plea conviction of illegal reentry into the United States after
having been convicted of a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1).
Rivera-Chavez’s sentence was within a properly calculated advisory guidelines
range that reflected a 16-level crime of violence enhancement based on his 1992
conviction for illegally transporting an alien within the United States. On
appeal, Rivera-Chavez argues that his sentence is unreasonable. Rivera-Chavez

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-41245

also argues that we should remand his case to the district court pursuant to F ED.
R. C RIM. P. 36 for correction of the judgment to reflect the proper offense of
conviction.
      Rivera-Chavez first argues that his sentence is unreasonable. Following
United States v. Booker, 543 U.S. 220 (2005), we review a district court’s
sentencing decisions for reasonableness in light of the sentencing factors in
18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97 (2007). First,
we consider whether the sentence imposed is procedurally sound. Id. at 597.
Thereafter, we consider whether the sentence is substantively reasonable, using
an abuse-of-discretion standard. Id. A sentence imposed within a properly
calculated guideline range is entitled to a rebuttable presumption of
reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Rivera-Chavez contends that Gall, 128 S. Ct. at 596, and Kimbrough v.
United States, 128 S. Ct. 558 (2007), which issued after his sentencing,
abrogated the rationale of previous Fifth Circuit decisions by broadening the
district court’s discretion to impose a nonguidelines sentence.       He argues,
therefore, that the sentencing court labored under a misconception that it could
not sentence him below the Guidelines in the absence of “extraordinary
circumstances” or based on the court’s disagreement with guidelines policy.
Because this theory was not argued in the district court, we review for plain
error. See Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129
S. Ct. 328 (2008). Nothing in the record suggests that the district court was
constrained by this court’s precedent from considering all of Rivera-Chavez’s
arguments for a nonguidelines sentence. Accordingly, there was no plain error.
See id.
      Citing the Supreme Court’s decisions in Kimbrough and Rita, Rivera-
Chavez next argues that the within-guidelines sentence imposed in his case
should not be accorded a presumption of reasonableness.           Rivera-Chavez

                                        2
                                   No. 07-41245

contends that the justification for applying a presumption of reasonableness in
his case is undercut because U.S.S.G. § 2D1.1, the Guideline used to calculate
his advisory sentencing guidelines range, was not promulgated according to
usual Sentencing Commission procedures and did not take into account
“empirical data and national experience.”           Rivera-Chavez portrays the
Kimbrough decision as having “suggested” that the appellate presumption
should not be applied to Guidelines that did not take account of this data and
experience.
      Our reading of Kimbrough does not reveal any such suggestion. The
question presented in Kimbrough was whether “a sentence . . . outside the
guidelines range is per se unreasonable when it is based on a disagreement with
the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct. at
564. Speaking specifically to the crack cocaine Guidelines, the Court simply
ruled that “it would not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a
mine-run case.”    Id. at 575.   In Kimbrough, the Court said nothing of the
applicability of the presumption of reasonableness.
      The appellate presumption is therefore applicable in this case. After
reviewing for procedural errors and considering the substantive reasonableness
of the sentence, we hold that Rivera-Chavez’s appellate arguments fail to
establish that his sentence is unreasonable.
      Rivera-Chavez also argues that we should remand his case to the district
court pursuant to F ED. R. C RIM. P. 36 for correction of the judgment to reflect the
proper offense of conviction. The indictment in the instant case reflects that
Rivera-Chavez pleaded guilty to being found in the United States following a
prior removal and without having obtained consent to reapply for admission.
The judgment of conviction reflects, however, that Rivera-Chavez was
adjudicated guilty of “[i]llegal reentry into the United States after having been

                                         3
                                       No. 07-41245

convicted of a felony.” Rivera-Chavez asserts that the offense of illegal reentry
is distinct from the offense of being found in the United States.
       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 into the United States after having been convicted of a felony,” 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.1
       Accordingly, we AFFIRM the judgment of the district court.


       1
          As Rivera-Chavez observes, we have noted that attempted reentry under § 1326
constitutes an offense distinct from either reentry or being found in the United States under
§ 1326, see United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000); United States
v. Martinez-Espinoza, 299 F.3d 414, 417 (5th Cir. 2002), but such cases, which focus on the
distinction between actual entry and attempted entry, are inapposite here. In this case, the
differences between actual and attempted entry are not at issue. Rather, Rivera-Chavez pled
to being found unlawfully in the United States, and we are called to determine whether the
judgment contained a clerical error in referring to that offense by its general statutory title.

                                               4
