UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2008
No. 07-40593
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRAVIS SPENCER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas,
Beaumont Division.
USDC No. 1:93-CR-223-1
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
JENNIFER W. ELROD, Circuit Judge:
In 1995, Appellant Travis Spencer pled guilty to carjacking. As part of his
sentence, Spencer was ordered to pay restitution to the owner ("Owner") of the
vehicle he stole, as well as to Owner's automobile insurance provider, Allstate
Insurance. At the sentencing colloquy, the district court ordered Spencer to pay
a total restitution amount of $9,187.88, but it did not specify how the restitution
was to be allocated.
On January 4, 1995, the district court entered judgment. The written
judgment specified that of the total restitution Spencer was required to pay,
Owner was to receive $1,119.00, and Allstate, $7,989.88. In its written judgment,
No. 07-40593
the district court erroneously totaled these amounts at $9,187.88. Over a decade
later, the government moved for an amended judgment on the basis that the
amounts payable to Owner and Allstate, as specified in the original judgment,
did not total $9,187.88, the total restitution Spencer had been ordered to pay at
his sentencing hearing. On April 30, 2007, the district court issued an amended
judgment in which it raised Owner's restitution from $1,119.00 to $1,198.00, a
difference of $79.00. As revised, the sum of the itemized restitution amounts in
the court's written judgment equaled the total restitution amount imposed at
sentencing. Importantly, the district court's amended judgment did not increase
the total amount of restitution Spencer was originally ordered to pay.
Spencer appeals the district court's amended judgment, arguing that it
amounts to an amendment of sentence under Federal Rule of Criminal
Procedure 35(a), which provides that "[w]ithin 7 days after sentencing, the court
may correct a sentence that resulted from arithmetical, technical, or other clear
error." By contrast, Rule 36, which the district court implicitly employed in
amending its judgment, establishes no time limitation but rather provides that
a court may "at any time correct a clerical error in a judgment . . . ." Thus, the
present issue is whether the district court's amendment of its original judgment
was a correction of a "clerical error" under Rule 36, or an alteration of Spencer's
sentence subject to the seven-day limitation of Rule 35(a).
Spencer argues that since the amended judgment corrects an "arithmetical
error," it cannot be deemed a "clerical error" for purposes of Rule 36, and thus
the seven-day time limitation of Rule 35 invalidates the amended judgment. This
argument overlooks the reality that Rule 35, by its very title, addresses
corrections of "sentences." Paragraph (c) of Rule 35 specifically provides that, for
purposes of the Rule, "'sentencing' means the oral announcement of the
sentence." It follows that Rule 35(a) is implicated when a district court seeks to
alter the actual sentence imposed on a criminal defendant as announced at the
sentencing hearing. By contrast, courts have deemed Rule 36 the appropriate
2
No. 07-40593
mechanism for amendments that do not substantively alter the sentence
announced orally but rather correct errors in written judgments. See United
States v. Bennett, 423 F.3d 271, 278 (3d Cir. 2005) ("In most cases, an error made
by the court in imposing its oral sentence will not be a clerical error within the
meaning of Rule 36. . . . [Instead,] Rule 36 is normally used to correct a written
judgment of sentence to conform to the oral sentence pronounced by the judge.");
cf. United States v. Patrick Petroleum Corp., 703 F.2d 94, 98 (5th Cir. 1982)
("Because the sentencing transcript reflects the same inconsistency as the
written order, [Rule] 36, which governs clerical errors, is not an appropriate
vehicle for clarification.").
In amending its judgment, the district court merely corrected its original
written judgment to conform with the sentence announced orally. We need not
today sketch the outer parameters of Rule 36.1 It is enough that under a
reasonable reading of the relevant rules, as well as relevant case law, the district
court's amendment amounts to a clerical revision that did not substantively alter
Spencer's sentence. Therefore, the time limitation of Rule 35 is inapplicable. See
United States v. Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004) (holding that an
amendment pertaining to the allocation of restitution, without altering the total
restitution amount, is a "clerical" correction, as it is "minor and mechanical in
nature").
AFFIRMED.
1
At least one circuit has held that a district court may, in limited
circumstances, employ Rule 36 to stiffen a sentence by adding provisions not
announced at sentencing. See United States v. Bennett, 423 F.3d 271 (3d Cir.
2005) (sustaining the addition of a forfeiture provision in a written judgment,
even though such was not announced orally, because the defendant had
previously stipulated to forfeiture, and because a preliminary order of forfeiture
had been entered).
3