United States v. Angel Hernandez ( 2018 )

Case: 16-11681 Document: 00514428477 Page: 1 Date Filed: 04/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-11681 April 13, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANGEL HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-268-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Acting pro se, Angel Hernandez challenges the denial of his self-styled
motion to reduce his sentence under 18 U.S.C. § 3582. He contends that
Amendment 782 to the Sentencing Guidelines reduced his offense level and
authorized the district court to reconsider his 262-month sentence for
possession with intent to distribute and distribution of 500 grams or more of
methamphetamine. Hernandez asserts that the sentence should be reduced
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11681 Document: 00514428477 Page: 2 Date Filed: 04/13/2018
No. 16-11681
because the district court erroneously applied an importation enhancement,
erred in determining the drug quantity, disregarded the stipulations in the
factual basis for his guilty plea, and confused him with the defendant in
another case. We review the district court’s application and interpretation of
the Sentencing Guidelines de novo. United States v. Doublin, 572 F.3d 235,
237 (5th Cir. 2009).
Amendment 782 did not lower Hernandez’s base offense level of 38
because he was accountable for more than 4.5 kilograms of ice
methamphetamine. See U.S.S.G. § 2D1.1(c)(1). Accordingly, the district court
did not err in determining that he was ineligible for relief under § 3582(c). See
Doublin, 572 F.3d at 237; § 3582(c)(2). Nor did it err in dismissing the motion
to the extent it constituted an unauthorized successive challenge to
Hernandez’s conviction under 28 U.S.C. § 2255. See § 2255(h).
Hernandez invokes our decision in United States v. MacKay, 757 F.3d
195 (5th Cir. 2014), to suggest that the district court should have corrected the
presentence report (PSR) under Federal Rule of Criminal Procedure 36 by
deleting the importation enhancement and reducing the drug quantity finding
to the amount stipulated in the factual basis. We review the forfeited claim for
plain error. See, e.g., United States v. Padilla-Avilez, 318 F. App’x 276, 276-77
(5th Cir. 2009). Hernandez must show, inter alia, that the district court
committed an error that was clear or obvious. See Puckett v. United States,
556 U.S. 129, 135 (2009).
A clerical error for purposes of Rule 36 is a “copying or computational
mistake.” MacKay, 757 F.3d at 199 (internal quotation marks and citation
omitted). Hernandez has not identified such an error in the PSR and thus fails
to show error, plain or otherwise, under Rule 36. See id.
The judgment of the district court is AFFIRMED.
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