United States v. Rios-Hernandez

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 21, 2024
• Docket: 23-20320
• Status: Unpublished

Opinion

Case: 23-20320 Document: 46-1 Page: 1 Date Filed: 02/21/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

FILED No. 23-20320 February 21, 2024 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Domingo Rios-Hernandez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-362-1 ______________________________

Before Jones, Southwick, and Ho, Circuit Judges. Per Curiam:* The Federal Public Defender appointed to represent Domingo Rios- Hernandez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Rios-Hernandez has submitted a letter

_____________________ * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 23-20320 Document: 46-1 Page: 2 Date Filed: 02/21/2024

No. 23-20320

to counsel that we construe as a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Rios- Hernandez’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5th Cir. R. 42.2. As counsel asserts, however, there is a clerical error in the judgment. The written judgment does not reflect the district court’s oral recommendation that the Bureau of Prisons (BOP) evaluate Rios-Hernandez to determine if he should be sent to a BOP medical facility for treatment of his health condition. Accordingly, we REMAND for correction of the clerical error in the written judgment in accordance with Federal Rule of Criminal Procedure 36. See United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003).