     Case: 19-40996      Document: 00515421150         Page: 1    Date Filed: 05/19/2020




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

                                                                               FILED
                                    No. 19-40996                           May 19, 2020
                                 Conference Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARMANDO MAGALLON-MOLINA, also known as Miguel Magallon-Molina,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:19-CR-1224-1


Before HAYNES, DUNCAN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       The Federal Public Defender appointed to represent Armando Magallon-
Molina has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632
F.3d 229 (5th Cir. 2011). Magallon-Molina has not filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected
therein. We concur with counsel’s assessment that the appeal presents no


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40996    Document: 00515421150     Page: 2   Date Filed: 05/19/2020


                                 No. 19-40996

nonfrivolous issue for appellate review. Our review also reveals a clerical error
in the district court’s written statement of reasons, which reflects that the
district court imposed an upward departure under U.S.S.G. § 4A1.3. However,
our review of the record, particularly the transcript of the sentencing hearing,
reveals that the district court clearly imposed a discretionary variance outside
of the guidelines framework in light of various 18 U.S.S.G. § 3553(a) factors.
See United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011) (explaining the
difference between a variance and a departure).
         Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2. The case is REMANDED for the limited
purpose of correcting the clerical error in the written statement of reasons. See
FED. R. CRIM. P. 36; United States v. Powell, 354 F.3d 362, 371-72 (5th Cir.
2003).




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