     Case: 15-40953      Document: 00513460925         Page: 1    Date Filed: 04/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-40953                                    FILED
                                  Summary Calendar                              April 12, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

FLORIBERTO GARCIA-MELENDRES, also known as Floriberto Garcia-
Melendez,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:15-CR-252


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Floriberto Garcia-Melendres pleaded guilty to being found in the United
States after deportation following a felony conviction.              The district court
sentenced him to 41 months. He argues on appeal, as he did below, that his
offense level should not be subject to a 16-level enhancement for a prior “drug
trafficking offense,” U.S.S.G. § 2L1.2(b)(1)(A), on the grounds that his prior


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40953
conviction did not require proof of commercial dealing or remuneration. He
acknowledges that this issue is foreclosed by the court’s decision in United
States v. Martinez-Lugo, 782 F.3d 198 (5th Cir.), cert. denied, 136 S. Ct. 533
(2015), and raises it only to preserve it for further review.
      Garcia-Melendres also requests remand pursuant to Federal Rule of
Criminal Procedure 36 so that the district court can correct the written
judgment to reflect its oral recommendation to the Bureau of Prisons that
Garcia-Melendres be housed in California. 1 The government argues that we
lack jurisdiction to consider this request, because whether the district court
should make such a recommendation is not appealable. United States v. De La
Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000). But Garcia-Melendres is not
challenging a failure to make a recommendation to BOP; he is challenging the
failure of the written judgment to conform to the oral pronouncement at
sentencing. We routinely remand criminal cases so the district court can
exercise its authority to conform the written judgment to the oral
pronouncement that controls. See, e..g., United States v. Martinez, 250 F.3d
941, 942 (5th Cir. 2001) (stating that a defendant’s constitutional right to be
present at sentencing requires the oral pronouncement of sentence to control
when it conflicts with the written sentence). And the district court’s authority
for doing so, Rule 36, sweeps more broadly than judgments or orders,
appealable or otherwise. It permits correction of clerical errors “in a judgment,
order, or other part of the record.” FED. R. CRIM. P. 36 (emphasis added).
Consonant with this broad authority, we have remanded criminal appeals with
directions to the district court to make minor corrections in the judgment, such



      1  At the sentencing hearing, in response to Garcia-Melendres’s request, the district
court orally recommended that the Bureau of Prisons house Garcia-Melendres in a facility
close to his family. Although this recommendation was reflected in the sentencing hearing
transcript and in the court’s minute entry, it was omitted from the written judgment.
                                            2
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                                  No. 15-40953
as fixing typos, which likely would not themselves give rise to an appealable
issue. See, e.g., United States v. Hernandez, 613 Fed. App’x 406 (5th Cir. 2015)
(remanding for correction of judgment which identified offense as 21 U.S.C.
§ 84(a)(1) rather than 21 U.S.C. § 841(a)(1)). Finally, even were we to refuse
Garcia-Melendres’s request here, he could simply file a Rule 36 motion in the
district court after the resolution of his appeal.
      REMANDED to the district court for the limited purpose of correcting a
clerical error in the written judgment, see FED. R. CRIM. P. 36. In all other
regards, AFFIRMED.




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