                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-10747          NOVEMBER 16, 2011
                                        Non-Argument Calendar         JOHN LEY
                                                                        CLERK
                                      ________________________

                          D.C. Docket No. 8:10-cr-00398-SDM-TGW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

RODOLFO ESCOBEDO-QUEZADA,
a.k.a. Ricardo Maldonado,
a.k.a. Jose Diaz-Gutierrez,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (November 16, 2011)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

         Rodolfo Escobedo-Quezada appeals his sentences and convictions for
reentering the United States illegally, 8 U.S.C. § 1326(a), and entering the United

States illegally, id. §§ 1325(a)(1), 1329. Escobedo-Quezada argues, for the first

time, that his multiple punishments violate the Double Jeopardy Clause of the

Fifth Amendment. Escobedo-Quezada also argues that his sentence of 20 months

of imprisonment for his illegal reentry is procedurally and substantively

unreasonable. We affirm Escobedo-Quezada’s sentences, and we vacate the

written judgment and remand to correct a clerical error.

      The district court did not err, much less plainly err, by imposing two terms

of imprisonment. Escobedo-Quezada’s crimes “constitute[] a violation of two

distinct statutory provisions” because “each provision requires proof of a fact

which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.

Ct. 180, 182 (1932). Escobedo-Quezada pleaded guilty to reentering the United

States illegally after having been deported three times previously, 8 U.S.C. §

1326(a), and to entering the United States “at a time and place other than as

designated by immigration officers,” id. § 1325(a). Because the government could

prosecute Escobedo-Quezada under both statutes, he “waived his double jeopardy

argument by pleading guilty.” United States v. Smith, 532 F.3d 1125, 1129 (11th

Cir. 2008).

      The district court did not abuse its discretion by varying upward from the

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advisory guideline range to sentence Escobedo-Quezada to term of 20 months of

imprisonment for his illegal reentry that would run concurrent with a term of 6

months for entering the United States illegally. Escobedo-Quezada was deported

from the United States in January and February of 1999 and again in March 2003;

he pleaded guilty to drug crimes in December 2003 and November 2004; and he

has outstanding warrants for his arrest in Florida and Illinois. The district court

decided to vary upward because of Escobedo-Quezada’s “dismissive attitude

towards the laws of the United States” governing “immigration and . . . other

behavior,” the lack “of effect” of previous within-guidelines sentences, his

previous election of an eight-month sentence of imprisonment “over making his

own way [on probation] for six or eight months,” and his “persistence in

reentering repeatedly and . . . remaining in the United States for a protracted time.”

The district court reasonably determined that the advisory guideline range of 2 to 8

months would not adequately reflect Escobedo-Quezada’s criminal history or

“achieve the statutory purposes of sentencing,” see United States v. Shaw, 560

F.3d 1230, 1237–40 (11th Cir. 2009), and that a sentence of 20 months of

imprisonment was necessary to “promote respect for the law,” provide adequate

punishment, deter similar future crimes, and protect the public, see 18 U.S.C. §

3553(a). Escobedo-Quezada’s sentences are reasonable.

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      We notice a clerical error in the written judgment. The written judgment

states mistakenly that Escobedo-Quezada pleaded guilty to two counts of illegal

reentry. Because “it 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 crime recited in the judgment,” United States v. James, 642 F.3d 1333, 1343

(11th Cir. 2011) (internal quotation marks omitted), we vacate the written

judgment and remand for the district court to enter a new judgment stating that

Escobedo-Quezada pleaded guilty to one count of illegal reentry and one count of

illegal entry into the United States.

      We AFFIRM Escobedo-Quezada’s sentences, and we REMAND for

correction of the written judgment.




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