U.S. v. Portillo

• Decision Date: 26 March 2004
• Docket Number: No. 03-14636 Non-Argument Calendar.,03-14636 Non-Argument Calendar.
• Citation: 363 F.3d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Byron Leonel PORTILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

363 F.3d 1161

UNITED STATES of America, Plaintiff-Appellee, v. Byron Leonel PORTILLO, Defendant-Appellant.

No. 03-14636 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

March 26, 2004.

COPYRIGHT MATERIAL OMITTED

Byron Leone Portillo, Talladega, AL, pro se.

H. Allen Moye, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Byron Portillo appeals pro se the district court's correction of his sentence pursuant to Fed.R.Crim.P. 36.¹ Portillo was convicted of (1) conspiracy to possess and distribute fraudulent alien registration cards in violation of 18 U.S.C. §§ 371, 1546(a), 1028(a)(2) and 8 U.S.C. § 1324(a)(1)(A)(iv); (2) conspiracy to possess with intent to distribute cocaine, methamphetamine, and amphetamine, in violation of 21 U.S.C. § 846; and (3) maintaining a place for the distribution of cocaine and methamphetamine in violation of 21 U.S.C. § 856(a)(1). At the sentencing hearing, the district court orally ordered Portillo to pay restitution in the amount of $14,800, jointly and severally with his co-conspirator, Isidro Silva Rubio, to six aliens listed in Rubio's Presentence Investigation Report ("PSI"). The aliens were victimized by Portillo and Rubio's fraudulent scheme of selling and distributing illegal immigration documents. However, contrary to the court's oral ruling, the subsequent written judgment and commitment order provided that Portillo would pay restitution jointly and severally with Rubio to the Georgia Bureau of Investigation ("GBI"), rather than to the six aliens. Portillo did not appeal his conviction or sentence before this Court. Four years later, the court sua sponte issued an order pursuant to Fed.R.Crim.P. 36 to correct two clerical errors that it found in Portillo's judgment. The court first found that it had erred in ordering Portillo's restitution to be paid jointly and severally with Rubio, because Rubio had never been ordered to pay restitution when he had been sentenced two years prior to Portillo. Thus, the court omitted that portion of the judgment requiring payment "jointly and severally with Isidro Silva Rubio (Case No. 2:96-cr-33)." Second, the court discovered that it had erred by ordering restitution to be paid to the GBI rather than to the six illegal aliens listed in Rubio's PSI. Thus, the court corrected the order to substitute the six aliens for the GBI as payees. Because we find that the errors corrected by the court in Portillo's judgment and commitment order were merely clerical, we affirm.

I. DISCUSSION

We review the district court's application of Fed.R.Crim.P. 36 to correct its judgment at sentencing as a matter of law de novo. See United States v. Pease, 331 F.3d 809, 812, 816 (11th Cir.2003).

The only issue that we must determine in this appeal is whether the district court had jurisdiction under Fed. R.Crim.P. 36 to correct the original written judgment sentencing Portillo. Fed. R.Crim.P. 36 provides that "[a]fter giving any notice it considers appropriate, 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." Thus, the question before us is whether the two errors corrected by the court constituted "clerical mistakes" that the court is allowed to correct "at any time". It is clear in this Circuit that Rule 36 may not be used "to make a substantive alteration to a criminal sentence." United States v. Pease, 331 F.3d 809, 816 (11th Cir.2003) (holding that the district court erred when it used Rule 36 to amend the defendant's sentence to include an order of forfeiture that had been agreed to in the plea agreement, but which the court failed to make a part of its judgment at sentencing)(citing to United States v. Whittington, 918 F.2d 149, 151 (11th Cir.1990) (holding that Rule 36 may not be used by the district court to fundamentally alter the defendant's sentence from three to five years imprisonment in an attempt to conform the sentence to the intention of the parties as reflected in the plea agreement, which provided that the prisoner would serve exactly five years); United States v. Werber, 51 F.3d 342, 347 (2d Cir.1995) (finding that "Rule 36 covers only minor, uncontroversial errors ..." and that a district court has no jurisdiction to correct a defendant's sentence where the corrections are aimed at remedying errors of law rather than mere transcription)). However, a district court may correct "clerical" errors in the written judgment at any time under Rule 36, for example, to ensure that the judgment is in accord with the oral sentence. United States v. Bates, 213 F.3d 1336, 1340 (11th Cir.2000) (citing United States v. Khoury, 901 F.2d 975, 977 (11th Cir.1990)). Where a sentence that is pronounced orally and unambiguously conflicts with the written order of judgment, the oral pronouncement controls. United States v. Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003).

Portillo argues that the district court erred in its application of Rule 36 because the mistakes that were corrected in his sentence were substantive rather than clerical in nature. Portillo further argues that because the court's order under Rule 36 effectively amounts to a resentencing, Fed.R.Crim.P. 43(a)(3) and due process require that he was entitled to be present when the court corrected his sentence.

We do not agree. With regard to the court's correction of the judgment to state that Portillo shall pay restitution to the six aliens, we find that the mistake was clerical in that it was minor and mechanical in nature. The Rule 36 order did not fundamentally alter Portillo's sentence, because it did not increase the restitution amount initially imposed at sentencing. The order merely changed the payees from the GBI to the six aliens who were directly injured by Portillo's crime.² Furthermore, the court was correct to change the written judgment so that it reflects the oral sentencing pronouncement. With regard to the court's deletion of the phrase from the written judgment requiring that Portillo pay the restitution "jointly and severally" with his co-conspirator Rubio, we also find that this correction was proper under Rule 36, which allows the court to "correct an error in the record arising from oversight or omission." Here, at sentencing, the court overlooked the fact that in Rubio's sentence imposed two years earlier, he had not been ordered to pay restitution. Again, the court's Rule 36 order did not make Portillo's sentence more onerous. In the original judgment order, Portillo was fully liable for payment of the restitution amount, and in the amended judgment order, he remains fully liable. See e.g., Aretz v. United States, 604 F.2d 417, 432 n. 19 (5th Cir.1979)³ (noting that under Georgia law, joint and several liability is defined as the situation where two concurrent causes cause an injury and the plaintiff may recover against either or both of the negligent actors) (citation omitted).

Turning to Portillo's argument that he was entitled to be present when the court corrected his sentence pursuant to Rule 36, we do not agree that either Fed. R.Crim. Proc. 43 or due process obliges the court to ensure Portillo's presence. It is true that "... the defendant must be present at ... sentencing" pursuant to Fed.R.Crim.P. 43(a). Additionally, the right to be present at one's sentence is constitutionally based. See United States v. Huff, 512 F.2d 66, 71 (5th Cir.1975) (citing Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)). However, we have held in this Circuit that the right to be present at one's sentencing "does not translate into a right to be present whenever judicial action modifying a sentence is taken." United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir.1991). We have already determined that the court's Rule 36 order in Portillo's case did not amount to a resentencing wherein the sentence was substantially changed. As we held in Jackson, where "the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as the modification does not make the sentence more onerous." Id., 923 F.2d at 1497 (holding that the defendant did not need to be present under Rule 43 when the district court modified his sentence from forty to thirty years imprisonment pursuant to the former Fed.R.Crim.P. 35 (1987))⁴. Furthermore, Rule 43 provides exceptions for when a defendant's presence is not required. Rule 43(b)(4) states that "[a] defendant need not be present under any of the following circumstances ... [t]he proceeding involves the correction or reduction of a sentence under Rule 35 ..." While Rule 43 does not specifically list Rule 36 as an exception, Rule 35(a)⁵ is analogous to the court's corrections here under Rule 36 in that it allows the court to correct errors in the sentence that have...