United States v. Hilario Campos-Alarcon , 434 F. App'x 856 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15801 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00312-SDM-AEP-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
HILARIO CAMPOS-ALARCON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 19, 2011)
Before BARKETT, MARCUS, and MARTIN, Circuit Judges.
PER CURIAM:
Hilario Campos-Alarcon appeals his 24-month sentence, imposed after he
pleaded guilty to conspiracy to transport at least six undocumented aliens within
the United States for commercial advantage or private financial gain, in violation
of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and (a)(1)(B)(i) (“Count 1”); transport of at
least four undocumented aliens within the United States for commercial advantage
or private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i)
(“Count 2”); illegal re-entry into the United States after deportation, in violation of
8 U.S.C. § 1326(a) (“Count 3”); and illegal re-entry into the United States at a
time and place not designated by immigration officials, in violation of 8
U.S.C. §§ 1325(a)(1) and 1329 (“Count 4”). On appeal, Campos-Alarcon asserts
that his above guidelines 24-month sentence is substantively unreasonable. After
a thorough review of the record and the parties’ briefs, we affirm the sentence, but
remand for correction of a clerical error contained in the district court’s judgment.
A district court must impose a sentence that is both procedurally and
substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). We review the reasonableness of a sentence “under a deferential
abuse-of-discretion standard.” Id. “The party challenging the sentence bears the
burden to show it is unreasonable in light of the record and the § 3553(a) factors.”
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
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A sentence is substantively unreasonable if it “fails to achieve the purposes
of sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). Pursuant to § 3553(a), the sentencing court must impose a
sentence “sufficient, but not greater than necessary,” to reflect the seriousness of
the offense, promote respect for the law, provide just punishment for the offense,
deter criminal conduct, protect the public from future criminal conduct by the
defendant, and provide the defendant with needed educational or vocational
training or medical care. 18 U.S.C. § 3553(a)(2). The court must also consider
the nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guideline range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
18 U.S.C. §§ 3553(a)(1), (3)-(7).
We find no error in the sentence imposed. The facts relied upon by the
district court – Campos-Alarcon’s repeated unlawful re-entries into the United
States and the number of undocumented aliens transported – are both appropriate
considerations under 18 U.S.C. § 3553(a)(2). That in light of these facts the
district court determined that a sentence within the guideline range was not long
enough to serve the purposes of § 3553(a) is precisely the type of discretionary
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determination the court is permitted to make. See Gall, 552 U.S. at 51, 128 S. Ct.
at 597. Moreover, Campos-Alarcon’s total sentence is well below the sixty year
maximum that he faced for his offenses, which lends support to its reasonableness.
See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (sentence
imposed far below statutory maximum penalty is relevant to determination of
sentence’s reasonableness). Under these circumstances, we find that the district
court did not abuse its discretion by imposing a substantively unreasonable
sentence.
Although we affirm the sentence, however, we find it necessary to remand
for a clerical correction. We may sua sponte raise the issue of clerical errors in the
judgment and remand with instructions that the district court correct the errors.
See United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006)
(remanding with directions to the district court to correct the clerical error where
the judgment stated an incorrect term of imprisonment). Remand for correction of
the judgment is appropriate “only if the erroneous entry of the judgment [is]
considered a clerical error, and the correction of the judgment would not prejudice
the defendant in any reversible way.” United States v. Diaz, 190 F.3d 1247, 1252
(11th Cir. 1999).
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The judgment in this case incorrectly lists Count Two, as a “[c]onspiracy to
transport at least four aliens within the United States by means of transportation,”
pursuant to 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i). However, Campos-Alarcon
was indicted and pleaded guilty to a violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and
(B)(1), which proscribes illegally transporting aliens within the United States for
the purpose of commercial advantage or private financial gain, with no mention of
a “conspiracy.” See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i). The indictment and
the plea hearing both correctly identify the charges in Count Two without
reference to “conspiracy.” It is thus clear from the record that the inclusion of
“conspiracy” in Count Two of the order of judgment is erroneous and constitutes a
clerical error, and correction of the judgment would not prejudice
Campos-Alarcon in any way requiring reversal.
Conclusion
Upon review of the record and consideration of the parties’ briefs, we affirm
the sentence, but vacate and remand for the limited purpose of correcting the
clerical error in the judgment.
AFFIRMED IN PART, VACATED AND REMANDED IN PART .
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