United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-40025
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
ROLANDO MOLINA
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(2:05-CV-536)
(2:94-CR-199-4)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Having been granted a certificate of appealability, Rolando
Molina contests the dismissal, as successive, of his 28 U.S.C. §
2255 motion challenging the district court’s 2005 amended judgment
of conviction.
As reflected in the record, the district court intended to
impose a supervised-release term of more than one year for counts
one and two. See United States v. De La Pena-Juarez, 214 F.3d 594,
601 (5th Cir. 2000) (when a written sentence and oral pronouncement
*
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this opinion should not be published and is not precedent except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.
conflict, the oral pronouncement generally governs, but “it is the
district court’s intention that ultimately determines the final
judgment”). The district court was statutorily mandated to impose
a specific term of release for each count. 21 U.S.C. §
841(b)(1)(A)(i), (b)(1)(B)(ii)(II). There was an ambiguity between
the oral and written judgments; therefore, the district court was
authorized under Federal Rule of Criminal Procedure 36 to correct
what was either “a clerical error in [the] judgment, ... or ... an
error in the record arising from oversight or omission”. FED. R.
CRIM. P. 36; see De La Pena-Juarez, 214 F.3d at 601. Accordingly,
the amended judgment merely modified the existing, original
sentence, which Molina challenged under § 2255 in 1997. Therefore,
his 2005 § 2255 motion was successive.
AFFIRMED; MOTION TO EXPAND THE GRANT OF A CERTIFICATE OF
APPEALABILITY DENIED
2