United States v. Ovando-Rochol

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 5, 2003
• Docket: 01-41362
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41362 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIAS OVANDO-ROCHOL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-231-1 -------------------- February 5, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Elias Ovando-Rochol appeals his guilty-plea conviction for

attempted illegal reentry of the United States after deportation.

He argues for the first time on appeal that, despite his consent to

proceed before the magistrate judge, the magistrate judge lacked

the authority to entertain his guilty plea. Ovando-Rochol’s

argument is foreclosed by our recent decision in United States v.

Bolivar-Munoz, 313 F.3d 253 (5th Cir. 2002), where we held that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41362 -2-

defendants’ failure to object to such a procedural defect resulted

in a waiver of their right to raise the issue as a basis for relief

from their guilty pleas. Id. at 257.

The district court’s judgment incorrectly states that Ovando-

Rochol was convicted of illegal reentry after deportation, rather

than attempted illegal reentry after deportation. These two

offenses are different from one another. United States v.

Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000)(distinguishing

these offenses). Since the error is a clerical one that should be

corrected under FED. R. CRIM. P. 36, we REMAND this case to the

district court for the limited purpose of correcting it as

indicated. See United States v. Sapp, 439 F.2d 817, 821 (5th Cir.

1971).

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN

JUDGMENT.