     Case: 13-20576      Document: 00512989919         Page: 1    Date Filed: 04/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20576
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 1, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SANTOS DIAZ-SOTO, also known as Jason A. Duran-Mejia,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-12-2


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Santos Diaz-Soto (Diaz) pleaded guilty to Counts 2 and 3 of a second
superseding indictment that charged him with interfering with commerce by
robbery in violation of 18 U.S.C. § 1951(a) and brandishing a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He
was sentenced to consecutive 163-month and 84-month prison terms and to
concurrent three-year terms of supervised release. Diaz filed a timely notice


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20576    Document: 00512989919     Page: 2   Date Filed: 04/01/2015


                                 No. 13-20576

of appeal. Diaz’s unopposed motion to adopt the opening brief filed by his
original appellate counsel is granted.
      Diaz argues that the district court erred in applying a four-level
enhancement pursuant to U.S.S.G. § 3B1.1(a) based on his role as a leader or
organizer of the offense. The district court heard live testimony from a case
agent that Diaz recruited at least one other participant in the offense. Diaz
contends that the case agent’s testimony is contrary to a statement made by
one of Diaz’s codefendants that it was yet another codefendant who had
recruited the participant at issue. In light of the case agent’s testimony,
however, the district court did not clearly err in applying the enhancement.
See United States v. Marquez, 685 F.3d 501, 508-09 (5th Cir. 2012); United
States v. Curtis, 635 F.3d 704, 720 & n.57 (5th Cir. 2011).
      Additionally, Diaz has noted a clerical error in the record and in the
judgment. The minute entry from his rearraignment proceeding erroneously
stated that he pleaded guilty to all three counts of the second superseding
indictment, and this clerical error carried over to the presentencing report
(PSR) and to sentencing. The PSR is a part of the record for purposes of
Federal Rule of Criminal Procedure 36, and Diaz’s PSR should be corrected to
the extent that it states that he was convicted of Count 1 of the second
superseding indictment. See United States v. Mackay, 757 F.3d 195, 197-98,
200 & nn.1, 4 (5th Cir. 2014). The judgment erroneously states that Diaz was
convicted of Count 1 of the second superseding indictment, and it imposes a
punishment and assesses a $100 special assessment on that count.
Accordingly, the case is REMANDED for the sole purpose of correcting these
clerical errors in the record and in the judgment. See FED. R. CRIM. P. 36. The
judgment of the district court is in all other respects AFFIRMED.




                                         2
