United States v. Juan Torres-Bazaldua

Case: 14-40679 Document: 00512964130 Page: 1 Date Filed: 03/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40679 FILED
Summary Calendar March 10, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN DE DIOS TORRES-BAZALDUA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-374
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Juan De Dios Torres-Bazaldua appeals from the sentence imposed in
connection with his conviction for illegal reentry after deportation. Torres-
Bazaldua argues that the written judgment contains a clerical error because it
does not reflect that the $100 special assessment was remitted. He contends
that this court should remand his case pursuant to Federal Rule of Criminal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40679 Document: 00512964130 Page: 2 Date Filed: 03/10/2015
No. 14-40679
Procedure 36 so that the district court can correct the written judgment to
reflect the fact that it orally remitted the assessment.
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).
The record shows that the district court did not remit the assessment.
Instead, the court explained to Torres-Bazaldua that he could get relief
administratively if he could not afford to pay it. Moreover, the district court
lacks the authority to sua sponte remit the assessment. See 18 U.S.C.
§ 3573(1); see also United States v. Nguyen, 916 F.2d 1016, 1020 (5th Cir. 1990)
(stating that the assessment is mandatory and that the district court cannot
decline to impose the special assessment under § 3013 based on its finding that
a defendant is indigent). Torres-Bazaldua fails to show that the written
judgment has a clerical error. See Buendia-Rangel, 553 F.3d at 379.
The judgment of the district court is AFFIRMED.
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