     Case: 10-40701 Document: 00511415449 Page: 1 Date Filed: 03/17/2011




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

                                                 FILED
                                                                           March 17, 2011
                                     No. 10-40701
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee

v.

NOE GARCIA MENDOZA,

                                                   Defendant–Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 4:06-CR-314-14


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Noe Garcia Mendoza appeals the district court’s denial of his motion for
a nunc pro tunc order reducing his sentence. Mendoza argues that the jury only
found that his offense involved a detectable amount of methamphetamine and,
consequently, his sentence exceeds the statutory maximum. Mendoza contends
that Amendment 484 to the Sentencing Guidelines provides that the actual
amount of drugs involved, not size of the mixture or substance containing the
drugs, must be used to determine drug quantity.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40701 Document: 00511415449 Page: 2 Date Filed: 03/17/2011

                                  No. 10-40701

      As Mendoza’s motion raised a claim of substantive error, not a claim of
clerical mistake or oversight, neither a motion for nunc pro tunc order nor a
motion under the provision for nunc pro tunc corrections set forth in F ED .
R. C RIM. P. 36 was the appropriate procedural vehicle for raising Mendoza’s
claim. See United States v. Hitchmon, 587 F.2d 1357, 1360 (5th Cir.), vacated
on other grounds, 602 F.2d 689 (1979); United States v. Steen, 55 F.3d 1022, 1026
n.3 (5th Cir. 1995). Furthermore, the jury found that Mendoza’s offense involved
“500 grams or more of a mixture or substance containing a detectable amount
of methamphetamine or 50 grams or more of methamphetamine (actual).” Thus,
his statutory maximum sentence was life imprisonment, making his sentence of
360 months of imprisonment within the statutory maximum. See 21 U.S.C.
§ 841(b)(1)(A)(viii). Mendoza’s reliance on Amendment 484 is also misplaced; as
a guidelines provision, Amendment 484 did not alter the statutory maximum
sentence and, unlike the methamphetamine at issue here, only concerns
materials that have to be separated from a controlled substance before the
controlled substance can be used, like fiberglass in a cocaine/fiberglass bonded
suitcase, beeswax in a cocaine/beeswax statue, or waste water from an illicit
methamphetamine laboratory. See U.S.S.G. App. C, Amend 484.
      Mendoza’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, it is dismissed. See
5 TH C IR. R. 42.2. The Government’s motion for summary affirmance and for an
extension of time to file a brief are denied as moot.
      APPEAL DISMISSED; MOTION FOR SUMMARY AFFIRMANCE
DENIED; MOTION FOR EXTENSION OF TIME TO FILE A BRIEF DENIED.




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