United States v. Rolando Bernardez-Avila , 613 F. App'x 440 ( 2015 )

Case: 14-41317 Document: 00513166965 Page: 1 Date Filed: 08/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-41317 FILED
Summary Calendar August 24, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROLANDO BERNARDEZ-AVILA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-92
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Rolando Bernardez-Avila (Bernardez) pleaded guilty to illegally
reentering the United States after deportation, and he was sentenced above
the advisory guideline range to 24 months in prison. At the same sentencing
hearing, he was also sentenced to a consecutive 18-month prison term upon
revocation of a supervised-release term that had been imposed for a prior
illegal reentry. At sentencing, the court explained that the 42-month total
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-41317
sentence was intended to be 12 months greater than the 30-month sentence
imposed for Bernardez’s most recent prior illegal reentry.
On appeal, Bernardez asks us to remand the case for correction of a
clerical error under Federal Rule of Criminal Procedure 36. He asserts that
the Statement of Reason (SOR) for the illegal-reentry sentence contains a
clerical error because it explains the 42-month total sentence, as did the court’s
oral pronouncement, but not the 24-month sentence imposed for the illegal
reentry. The SOR’s explanation would have been more precise if the court had
said that the 24-month sentence was a variance above the guideline range,
imposed so that, when combined with the consecutive 18-month revocation
sentence, the total sentence would 42 months, a 12-month increase from the
prior 30-month sentence.
A “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. Accordingly, Rule 36 is “the appropriate
mechanism for amendments that do not substantively alter the sentence
announced orally but rather correct errors in written judgments.” United
States v. Spencer, 513 F.3d 490, 491 (5th Cir. 2008). On the other hand, “[a]ny
error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.” FED. R. CRIM. P. 52(a).
If there is a correctable error in the SOR, it not substantive. The
rationale for making a written judgment conform to the orally pronounced
sentence is not clerical error but the constitutional error of failing to pronounce
the sentence in the defendant’s presence. See United States v. Vega, 332 F.3d
849, 852-53 (5th Cir. 2003). The written judgment accurately states that the
illegal-reentry sentence is 24 months, and the SOR accurately reflects the
court’s oral reasons for the total sentence. More significantly, the SOR is not
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No. 14-41317
intended to provide any safeguards to a defendant but is rather intended to
provide information to the United States Sentencing Commission as a
record-keeping function. See United States v. Pillaut, 783 F.3d 282, 292 n.2
(5th Cir. 2015). The SOR statute, 28 U.S.C. § 994(w), merely provides that the
SOR shall be sent to the Sentencing Commission. Pillaut, 783 F.3d at 292 n.2.
Accordingly, Bernardez has no readily apparent interest in what the SOR says
to the Sentencing Commission.
Section 994(w)(1)(A) further provides that the Sentencing Commission
will receive the judgment, which accurately shows the 24-month illegal-reentry
sentence. The SOR and the judgment, as well as this opinion, should
adequately inform the Sentencing Commission of what it wants to know, and
there is no error that affects Bernardez’s substantial rights. See Rule 52(a).
The judgment is AFFIRMED.
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