     Case: 09-40295     Document: 00511074216          Page: 1    Date Filed: 04/08/2010




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

                                                  FILED
                                                                             April 8, 2010
                                     No. 09-40295
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAFAEL SANTOS GALAN-CASTRO, also known as Rafael Hernandez-Castro,
also known as Rafael Hernandez, also known as Rafael Castro, also known as
Rafael Santos Galan, also known as Victor Manuel Hernandez, also known as
Nathan Hernandez, also known as Rafael Fernandez,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:08-CR-749-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Rafael Santos Galan-Castro pleaded guilty to illegal reentry. The district
court sentenced him to 57 months of imprisonment, three years of supervised
release, and a $100 special assessment. The district court, expressing concern
that Galan-Castro received ineffective assistance of counsel at sentencing, sua
sponte vacated the judgment against Galan-Castro, appointed the Federal Public

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40295   Document: 00511074216 Page: 2         Date Filed: 04/08/2010
                                No. 09-40295

Defender to represent Galan-Castro, and set the case for resentencing. The
district court imposed the same sentence on resentencing, which occurred 14
days after the original sentence was imposed.
      The parties both argue that the district court lacked authority to
resentence Galan-Castro. This court reviews de novo whether a district court
had authority to resentence a defendant pursuant to Rule 35(a) of the Federal
Rules of Criminal Procedure. United States v. Ross, 557 F.3d 237, 239 (5th Cir.
2009).
      “[A] district court’s authority to correct or modify a sentence is limited to
those specific circumstances enumerated by Congress in 18 U.S.C. § 3582([c]).”
United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997); see also United
States v. Lopez, 26 F.3d 512, 516 (5th Cir. 1994) (district court authorized to
modify term of imprisonment only if one or more bases permitted by § 3582(c)
is applicable). The only statutory predicate potentially applicable to the instant
case is § 3582(c)(1)(B), which authorizes a sentencing court to modify a sentence
pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
      Assuming for the sake of argument that the amended version of Rule 35,
which became effective while this appeal was pending, made the district court’s
resentencing timely, the district court nevertheless overstepped its authority in
resentencing Galan-Castro. Any sua sponte sentencing modifications must be
made “to correct a sentence that resulted from arithmetical, technical, or other
clear error.” F ED. R. C RIM. P. 35(a). Although the district court expressed
concerns about counsel’s performance at sentencing, Galan-Castro’s initial
sentence did not result from clear error. Galan-Castro’s attorney’s commitment
to an argument that could have lengthened Galan-Castro’s sentence did not
actually prejudice Galan-Castro since the district court declined to enhance
Galan-Castro’s sentence based on counsel’s argument. Further, Galan-Castro’s
counsel on resentencing found nothing that would impact Galan-Castro’s



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                                 No. 09-40295

sentence that had not previously been called to the district court’s attention, and
the district court imposed the same sentence.
      Because there was no “clear error,” the district court lacked authority to
resentence Galan-Castro pursuant to Rule 35(a). Ross, 557 F.3d at 239-43.
Therefore, we VACATE and REMAND this case for reinstatement of the original
judgment.




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