United States v. Francisco Atriano-Cuahutle , 599 F. App'x 221 ( 2015 )

Case: 14-40710 Document: 00513003879 Page: 1 Date Filed: 04/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40710 FILED
Summary Calendar April 14, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO ATRIANO-CUAHUTLE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-181
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
Francisco Atriano-Cuahutle pleaded guilty to an indictment charging a
violation of 18 U.S.C. § 111 and was sentenced within the guidelines range to
21 months of imprisonment. He now appeals, arguing that this court should
vacate and remand for correction of the clerical errors in the judgment and the
presentence report (PSR). Atriano-Cuahutle contends that he was charged
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40710 Document: 00513003879 Page: 2 Date Filed: 04/14/2015
No. 14-40710
with and pleaded guilty to resisting, opposing, impeding, intimidating, and
interfering with a federal officer and not to assaulting a federal officer, as the
offense is described in the judgment and the PSR. He asserts that assault of a
federal officer is a separate and distinct offense from the others with which he
was charged, despite the fact that the offenses are proscribed by the same
statute and punished in the same manner.
Rule 36 provides that “the court may at any time correct a clerical error
in a judgment, order, or other part of the record, or correct an error in the
record arising from oversight or omission.” FED. R. CRIM. P. 36. A clerical
error occurs when the court intends to do one thing but through clerical
mistake or oversight does another. United States v. Buendia-Rangel, 553 F.3d
378, 379 (5th Cir. 2008).
Regardless of whether the § 111 offense of assault is separate and
distinct from the § 111 offense of resisting, opposing, intimidating, and
impeding, the record shows that the district court’s description of the offense
is not a clerical error. The court did not err in recitation and did not do
something unintended through mistake or oversight. See Buendia-Rangel, 553
F.3d at 379. The district court intended for the PSR and the judgment to
describe the offense of conviction as an assault.
The judgment of the district court is AFFIRMED.
2