     Case: 12-41045       Document: 00512282151         Page: 1     Date Filed: 06/20/2013




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

                                                                            FILED
                                                                           June 20, 2013
                                     No. 12-41045
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PEDRO FIGUEROA-NORIEGA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-815-1


Before SMITH, DeMOSS, and SOUTHWICK, District Judges.
PER CURIAM:*
       Pedro Figueroa-Noriega was convicted of attempted illegal reentry into the
United States and sentenced to 30 months of imprisonment. In his sole issue
on appeal, Figueroa-Noriega argues that the district court plainly erred by
presuming that the guidelines sentencing range was reasonable. We consider
this claim under the plain error standard of review because it was not presented
to the district court. See United States v. King, 541 F.3d 1143, 1144 (5th Cir.
2008). Figueroa-Noriega must show an error that is clear or obvious and that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-41045      Document: 00512282151       Page: 2    Date Filed: 06/20/2013

                                    No. 12-41045

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). Even if this showing is made, we will exercise our discretion to correct
the error only if it “seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” Id. (internal quotation marks and citation omitted).
      At sentencing, the district court stated that the Guidelines were presumed
to be reasonable. It is plain that a “sentencing court does not enjoy the benefit
of a legal presumption that the Guidelines sentence should apply.” Rita v.
United States, 551 U.S. 338, 351 (2007). However, nothing in the district court’s
remarks, viewed in their entirety, shows that it actually required Figueroa-
Noriega to overcome a presumption that the guidelines range was reasonable or
refused to grant a departure or variance absent a showing of extraordinary
circumstances. See King, 541 F.3d at 1145. Indeed, our review of the record
shows that the district court acted properly by considering Figueroa-Noriega’s
arguments and the sentencing factors of 18 U.S.C. § 3553 when imposing the
sentence it found to be appropriate. See Gall v. United States, 552 U.S. 38, 50
(2007). Figueroa-Noriega has not shown plain error concerning his sentence.
      We also note that there is a clerical error in the judgment.
Figueroa-Noriega was charged with and pleaded guilty to attempted illegal
reentry. The written judgment describes the offense of conviction as “[b]eing
found in the U.S. after previous deportation.” “[T]here is a clear distinction
between actual entry into the United States, and attempted entry.” United
States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000). Under Federal
Rule of Criminal Procedure 36, a district court may correct a clerical error in a
judgment at any time. Furthermore, we may review clerical errors in the
judgment for the first time on appeal and remand a case to the district court
with instructions to correct the errors in the judgment. See United States v.
Powell, 354 F.3d 362, 371-72 (5th Cir. 2003).
      AFFIRMED; LIMITED REMAND TO CORRECT CLERICAL ERROR IN
JUDGMENT.

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