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

                                                                   FILED
                                                                 October 27, 2008
                                No. 07-40868
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

FRANCISCO JAVIER PRIETO-HERNANDEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:07-CR-563-1


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Francisco Javier Prieto-Hernandez pleaded guilty to being “found in the
United States” following a prior removal and without having obtained consent
to reapply for admission, in violation of 8 U.S.C. § 1326. He was indicted for
being found in the United States in violation of § 1326, and the judgment states,
under the heading “Nature of the Offense,” that he was adjudicated guilty of “re-
entry of a deported alien.” Prieto-Hernandez asserts that the offense of illegal
reentry is distinct from the offense of being found in the United States. He seeks

      *
      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should not be published and is not precedent except under the limited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.
                                    No. 07-40868

a remand pursuant to FED. R. CRIM. P. 36 for correction of the judgment to reflect
the proper offense of conviction.
      Rule 36 authorizes us to correct only clerical errors, which occur when “the
court intended one thing but by merely clerical mistake or oversight did
another.” United States v. Steen, 55 F.3d 1022, 1025-26 n. 3 (5th Cir.1995).
Section 1326 is entitled “[r]eentry of removed aliens” and provides, inter alia,
that any alien who has been denied admission, excluded, deported, or removed,
and who subsequently enters, attempts to enter, “or is at any time found in, the
United States” without having obtained required consent or without showing
that such consent is not required, is subject to certain criminal penalties.
8 U.S.C. § 1326(a), (b).
      The judgment’s “nature of the offense” description, “[r]e-entry of a
deported alien,” so closely tracks the § 1326 title, “[r]eentry of removed aliens,”
that it bears no indicia of the district court having made a mistake or oversight.
See § 1326. The district court’s judgment uses the term “re-entry of a deported
alien” intentionally in reference to § 1326 generally; there is no clerical error.
Accordingly, we AFFIRM the judgment of the district court.




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