                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-11685                ELEVENTH CIRCUIT
                                                           OCTOBER 27, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                   D. C. Docket No. 08-21090-CR-PCH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JORGE AMABLE ORTIZ,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (October 27, 2009)



Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Jose Amable Ortiz appeals his 57-month sentence imposed after pleading

guilty to illegal reentry into the United States after deportation for felony

convictions in violation of 8 U.S.C. § 1326(a), (b)(1). There are two issues

presented on appeal, which we address in turn.

                                           I.

      Ortiz asserts the sentence imposed was substantively unreasonable under the

factors stated in 18 U.S.C. § 3553(a). Specifically, Ortiz claims he should have

been given a downward variance from the Sentencing Guidelines range because of

the hardships he endured during his voyage from the Dominican Republic to

Florida.

      A defendant’s sentence is reviewed for substantive reasonableness under an

abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).

A sentence is substantively unreasonable “if it does not achieve the purposes of

sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th

Cir. 2008) (quotations omitted). The analysis “involves examining the totality of

the circumstances, including an inquiry into whether the statutory factors in

§ 3553(a) support the sentence in question.” United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008), cert. denied, 129 S. Ct. 2848 (2009). “[T]he party

who challenges the sentence bears the burden of establishing that the sentence is



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unreasonable in light of both [the] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Ortiz has not met his burden of demonstrating the district court abused its

discretion. Ortiz fails to identify how his argument, regarding the hardships he

endured during his voyage from the Dominican Republic to Florida, addresses the

purposes of § 3553(a) and why the district court’s decision fails to achieve those

purposes. Ortiz merely asserts, through conclusory statements, that his trauma

entitles him to a downward variance without citing any precedent or policy

arguments.

      The district court did not abuse its discretion in imposing a sentence at the

low end of the Sentencing Guidelines range. The district court’s sentence was

reasonable in light of both the record and the § 3553(a) factors. The district court’s

sentence of 57 months fell within the applicable Guidelines range of 57 to 71

months and was less than half the statutory maximum of ten years. See Talley, 431

F.3d at 788 (stating “when the district court imposes a sentence within the advisory

Guidelines range, we ordinarily will expect that choice to be a reasonable one”),

United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (emphasizing the

fact the defendant’s sentence was only one-tenth the length of the statutory

maximum sentence). Ortiz’s sentence is reasonable, and we affirm.



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                                          II.

      Although neither party raises the issue, we may raise the issue of clerical

errors in the judgment sua sponte and remand with instructions for the district

court correct the errors. United States v. Diaz, 190 F.3d 1247, 1252 (11th Cir.

1999) (noting because a judgment listing an incorrect statute could not stand as

entered, the judgment should be vacated and remanded to the district court for

correction of the clerical error); United States v. Anderton, 136 F.3d 747, 751 (11th

Cir. 1998) (remanding to the district court with directions to correct clerical error

where the statute cited in judgment was incorrect). Remanding to the district court

is essential because “[i]t is fundamental error for a court to enter a judgment of

conviction against a defendant who has not been charged, tried, or found guilty of

the crimes recited in the judgment.” Diaz, 190 F.3d at 1252.

      Ortiz was indicted for violating 8 U.S.C. § 1326(a) and (b)(1). This statute

penalizes the reentry of removed aliens. 8 U.S.C. § 1326. During Ortiz’s guilty

plea, the district court identified the charge as § 1326(a) and (b)(1), and Ortiz pled

guilty to that charge. Nevertheless, when the district court issued the judgment, the

applicable statutes were listed as 6 U.S.C. §§ 202(3), 202(4), and 557. Section 202

references the responsibilities of the Secretary for Border and Transportation

Security. On the other hand, section 557 regards the process of the transition into



                                           4
the Department of Homeland Security. These statutes do not contain any criminal

provisions, and are inapplicable. See 6 U.S.C. §§ 202, 557. Lastly, as further

evidence of the error, the judgment lists the nature of the offense as “alien, having

previously been removed, was found to be in U.S. without lawful authority.” This

description of the offense demonstrates the district court intended to list § 1326 as

the applicable statute. See 8 U.S.C. § 1326 (“Reentry of removed aliens”).

       There is no apparent reason why the correction would harm Ortiz. See Diaz,

190 F.3d at 1252 (stating the only limitation upon correcting the errors is that

correction of the judgment must “not prejudice the defendant in any reversible

way”). If anything, having accurate records will be to Ortiz’s benefit.

Consequently, remand is appropriate because the judgment lists the incorrect

statutes and we vacate and remand for the limited purpose of the correcting the

clerical error. See id.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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