United States v. Huerta ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-11052
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER HUERTA, also known as Big Boy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-369-4
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Huerta appeals his guilty-plea conviction for
conspiracy to distribute and possess with intent to distribute
100 kilograms or more of marijuana. He argues that the written
judgment of conviction does not accurately reflect the offense to
which he pleaded guilty.
As the Government has explicitly declined to invoke the
appeal waiver regarding the issue raised by Huerta, the appeal
waiver is not binding on this appeal. See United States v.
Story, 439 F.3d 226, 231 (5th Cir. 2006).
*
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this opinion should not be published and is not precedent except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.
No. 05-11052
-2-
As the Government concedes, the written judgment describes
the nature of Huerta’s offense as conspiracy to distribute and
possess with intent to distribute five kilograms or more of
cocaine and 100 kilograms or more of marijuana while the record
shows that Huerta pleaded guilty only to conspiracy to distribute
and possess with intent to distribute 100 kilograms or more of
marijuana. This error is a clerical error subject to correction
pursuant to FED. R. CRIM. P. 36. See United States v. Sapp, 439
F.2d 817, 821 (5th Cir. 1971). Accordingly, we affirm Huerta’s
conviction and sentence and remand this case to the district
court for correction of the clerical error in the judgment
pursuant to Rule 36.
AFFIRMED; MOTION TO GRANT RELIEF REQUESTED GRANTED; REMANDED
FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.