United States v. Magallon-Molina

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40996
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARMANDO MAGALLON-MOLINA, also known as Miguel Magallon-Molina,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1224-1

Before HAYNES, DUNCAN, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

The Federal Public Defender appointed to represent Armando Magallon-
Molina 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). Magallon-Molina has not filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected
therein. We concur with counsel’s assessment that the appeal presents no

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 19, 2020

Lyle W. Cayce
Clerk
Case: 19-40996 Document: 00515421150 Page: 1 Date Filed: 05/19/2020

No. 19-40996
2
nonfrivolous issue for appellate review. Our review also reveals a clerical error
in the district court’s written statement of reasons, which reflects that the
district court imposed an upward departure under U.S.S.G. § 4A1.3. However,
our review of the record, particularly the transcript of the sentencing hearing,
reveals that the district court clearly imposed a discretionary variance outside
of the guidelines framework in light of various 18 U.S.S.G. § 3553(a) factors.
See United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011) (explaining the
difference between a variance and a departure).
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5
TH CIR. R. 42.2. The case is REMANDED for the limited
purpose of correcting the clerical error in the written statement of reasons. See
F
ED. R. CRIM. P. 36; United States v. Powell, 354 F.3d 362, 371-72 (5th Cir.
2003).

Case: 19-40996 Document: 00515421150 Page: 2 Date Filed: 05/19/2020