[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-14636 March 26, 2004
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 98-00045-CR-1-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON LEONEL PORTILLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 26, 2004)
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
1
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.”
2
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
3
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
4
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
2
We are not persuaded by Portillo’s argument that because the names of these individuals
were not specifically listed in his indictment, they are not entitled to restitution. We note that in
Count Two of the indictment, six different occasions are described where Portillo conspired with
Rubio to sell to “an illegal alien a departure card bearing a stamp purporting to bestow upon the
illegal alien temporary permanent resident status.” Criminal Indictment of Portillo et al., October
21, 1998, at 4-5. Furthermore, Portillo’s PSI names four of those illegal aliens and states that
Portillo was involved in selling illegal immigration documents to two other individuals as well.
5
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).
PSI for Byron Leonel Portillo, June 21, 1999, at 7-8. We also reject Portillo’s claim that he
should not be required to make restitution to aliens who were illegal and who allegedly
facilitated in the distribution of fraudulent documents. We note that in some cases, Portillo
represented to the aliens that the documents were genuine. PSI for Portillo at 8. In any event,
we need not decide Portillo’s objection to making payment to the aliens on this ground, because
Portillo failed to object to it at sentencing or raise it on direct appeal.
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
6
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 (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.
4
The former version of Rule 35 was similar to the current Rule 36 and provided that
“[t]he court may correct an illegal sentence at any time....” Fed.R.Crim.P. 35(a) (1987).
7
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
arithmetical, technical, or some other sort of clear error. Finally, it is the rule in
this Circuit that while it may be preferable to have the defendant present when the
court corrects clerical errors in the judgment under Rule 36, “the defendant’s
absence [cannot] rise to a deprivation of due process.” Cook v. United States, 426
F.2d 1358, 1360 (5th Cir. 1970).
Finally, Portillo makes a number of substantive challenges to the restitution
order itself: (1) that the restitution was illegal because the GBI cannot be a payee
because it does not qualify as a “victim” under the Victim W itness Protection Act,
and (2) that the court failed to consider his inability to pay restitution. Portillo’s
first claim of error fails because he was not ordered to pay restitution to the GBI,
this was simply a clerical mistake that the court corrected in its Rule 36 order. The
5
Rule 35(a) provides that [w]ithin 7 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other clear error.”
8
remaining claim fails because although Portillo objected at sentencing to the
restitution ordered on grounds of his inability to pay, he failed to appeal it to this
Court. The time allowed Portillo for challenging his restitution order entered on
August 3, 1999, has long since expired under Fed. R. App. P. 4(b)(1)(A), 6 and he
may not now challenge it in this appeal of the district court’s Rule 36 order.
II. CONCLUSION
Based on the foregoing, we AFFIRM the district court’s correction of
Portillo’s sentence pursuant to Fed. R. Crim. P. 36.
6
Fed. R. App. P. 4(b)(1)(A) requires that “[i]n a criminal case, a defendant’s notice of
appeal must be filed in the district court within 10 days after the later of: (i) the entry of either
the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal.”
9