     Case: 15-10225      Document: 00513354051         Page: 1    Date Filed: 01/25/2016




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

                                    No. 15-10225                                     FILED
                                  Summary Calendar                             January 25, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LORENZO VALDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CR-65


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Lorenzo Valdez, federal prisoner #42864-177, appeals the district court’s
denial of his Federal Rule of Criminal Procedure 36 motion to correct the
presentence report (PSR) that was used by the district court in determining
his sentence. Valdez is serving a 360-month sentence for conspiring to possess
with intent to distribute cocaine. In cases where there are no factual disputes,
we review a district court’s denial of a Rule 36 motion de novo. United States


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10225

v. Mackay, 757 F.3d 195, 197 (5th Cir. 2014). In some unpublished cases, we
have reviewed the denial of a Rule 36 motion only for an abuse of discretion.
See United States v. Webster, 466 F. App’x 319, 320 (5th Cir. 2012); United
States v. Harrill, 91 F. App’x 356, 357 (5th Cir. 2004). We need not decide
which standard applies here, though, because Valdez is not entitled to relief
under either standard. See United States v. Crawley, 463 F. App’x 418, 420 n.1
(5th Cir. 2012).
      Valdez argues that, in light of this court’s decision in United States v.
Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), the district court erred in finding
that it did not need to correct the PSR to eliminate the assignment of criminal
history points to Valdez’s prior Texas convictions for driving while intoxicated.
We held in Chapa-Garza that a prior Texas conviction for driving while
intoxicated is not a crime of violence that would support the application of a
16-level enhancement under U.S.S.G. § 2L1.2. Id. at 927–28. Valdez’s offense
level was not enhanced under Section 2L1.2, and Chapa-Garza is inapposite
here. Even if Chapa-Garza was applicable here, the relief that Valdez seeks is
not just the correction of the record but resentencing based on a completely
recalculated guidelines range. This is not the type of error that is correctable
under Rule 36. See FED. R. CRIM. P. 36; United States v. Steen, 55 F.3d 1022,
1025–26 n.3 (5th Cir. 1995).
      For the first time in this court, Valdez argues that he was illegally
convicted of and sentenced for a methamphetamine-related offense rather than
a cocaine-related offense because the court referenced the importation of
methamphetamine at sentencing. We review this new argument only for plain
error. See United States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010). A review
of the record indicates that the district court merely misspoke and referenced
“methamphetamine” rather than “cocaine” in discussing Valdez’s objection to



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                                 No. 15-10225

the application of a two-level enhancement for having imported cocaine from
Mexico.   Methamphetamine played no role in the calculation of Valdez’s
guidelines sentencing range, and the judgment of conviction properly reflects
that Valdez was convicted of a cocaine-related offense. Accordingly, to the
extent that the district court’s mistake or oversight is correctable under Rule
36, Valdez was not harmed by the district court’s erroneous reference to
methamphetamine at sentencing, and he thus cannot show that the district
court plainly erred in denying his motion. See United States v. Puckett, 556
U.S. 129, 135 (2009).
      AFFIRMED.




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