United States v. Roman-Roman ( 2022 )

Case: 21-51079 Document: 00516577053 Page: 1 Date Filed: 12/13/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-51079
Summary Calendar FILED
December 13, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Emanuel Roman-Roman,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CR-2043-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Emanuel Roman-Roman appeals from the sentence imposed for his
conviction of attempted illegal re-entry after removal. Roman-Roman argues
that the written judgment contains a clerical error because it does not reflect
that when the district court orally pronounced the sentence, it stated that the
$100 special assessment was remitted. He asks us to remand the case
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-51079
pursuant to Federal Rule of Criminal Procedure 36 for correction of the
written judgment.
Rule 36 provides: “After giving any notice it considers appropriate,
the court may at any time correct a clerical error in the 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).
The record shows that the Government did not move to remit the
special assessment. Nevertheless, the district court announced that the
special assessment against Roman-Roman was remitted. However, the
district court lacked the authority to order the assessment remitted sua
sponte. See 18 U.S.C. § 3013(a)(2)(A); United States v. Nguyen, 916 F.2d
1016, 1020 (5th Cir. 1990); see also 18 U.S.C. § 3573(1). Roman-Roman fails
to show that the district court intended to err by remitting the assessment but
through clerical mistake or oversight imposed it. See Buendia-Rangel, 553
F.3d at 379. Rather, we infer that the district court intended to impose the
special assessment in the written judgment, notwithstanding its oversight in
the oral pronouncement. Thus, Roman-Roman fails to show that the written
judgment has a clerical error. See id.To the extent that Roman-Roman seeks correction of the judgment
apart from Rule 36, he is not entitled to relief. Because the judgment is in
accordance with the law, which mandates the special assessment, see
§ 3013(a)(2)(A), any irregularity in its imposition does not affect Roman-
Roman’s substantial rights. See Fed. R. Crim. P. 52(a) & (b).
Roman-Roman also contends that the district court’s application of
the recidivism enhancement in § 1326(b) is unconstitutional. Nevertheless,
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No. 21-51079
he properly acknowledges that this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937
F.3d 546, 553-54 (5th Cir. 2019). He raises the issue only to preserve it for
further review.
AFFIRMED.
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