     Case: 13-50304        Document: 00512532172       Page: 1    Date Filed: 02/13/2014




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

                                    No. 13-50304                                FILED
                                  Summary Calendar                      February 13, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICARDO VILLA SEPEDA, also known as Kike,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-641-2


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Ricardo     Villa     Sepeda      (Sepeda)     challenges      the        substantive
reasonableness of the sentence imposed for his convictions for one count of
conspiracy to possess with intent to distribute cocaine and one count of
possession with intent to distribute cocaine. He was sentenced within the
guidelines range to 87 months of imprisonment and three years of supervised
release on each count to run concurrently. Because Sepeda failed to object to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50304

an error at sentencing, we conduct a plain error review. Puckett v. United
States, 556 U.S. 129, 134-35 (2009); United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007).
      Sepeda contends that the drug trafficking Guideline, U.S.S.G. § 2D1.1,
produces a guidelines range that is greater than necessary in a mine-run case
such as his because it is not based on empirical data and assumes that a larger
quantity of drugs indicates greater culpability. Sepeda further contends that
his sentence does not account for his history and characteristics, i.e., his
mental health issues and lack of education.
      The district court was not required to question the empirical grounding
behind § 2D1.1. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.
2009). The drug quantity and Sepeda’s history and characteristics were before
the district court, yet the district court imposed a sentence within the
guidelines range.     We have recognized that “the sentencing judge is in a
superior position to find facts and judge their import under [18 U.S.C.]
§ 3553(a) with respect to a particular defendant.” United States v. Campos-
Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Sepeda has not demonstrated
that the district court failed to give the proper weight to any particular
§ 3553(a) factor or that his sentence “represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). Therefore, he has failed to rebut the presumption of reasonableness
that is accorded to his within-guidelines sentence. See id.
      In addition, although neither party addresses the issue, the written
judgment incorrectly reflects that with respect to count three of the indictment,
Sepeda pleaded guilty to possession with intent to distribute more than 500
grams of cocaine. The record indicates that Sepeda was charged with, and




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                                 No. 13-50304

pleaded guilty to, possession with intent to distribute less than 500 grams of
cocaine.
      A clerical error arises where “the court intended one thing but by merely
clerical mistake or oversight did another.” United States v. Buendia–Rangel,
553 F.3d 378, 379 (5th Cir. 2008) (citations and internal quotation marks
omitted). This court has noted sua sponte that it must remand for the purpose
of correcting irregularities contained in the judgment. See United States v.
Johnson, 588 F.2d 961, 964 (5th Cir. 1979) (citing FED. R. CRIM. P. 36).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED in part and REMANDED for the limited purpose of correcting the
written judgment to correctly identify the offense of conviction.




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