FILED
NOT FOR PUBLICATION NOV 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10580
Plaintiff-Appellee, D.C. No. 4:90-cr-00335-CKJ
v.
MEMORANDUM*
LOURDES VALENZUELA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Lourdes Valenzuela appeals from the district court’s order under Rule 36 of
the Federal Rules of Criminal Procedure amending Valenzuela’s 1991 judgment of
conviction to correct a clerical error regarding the statutes of conviction. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Although Valenzuela concedes on appeal that the original judgment cited the
incorrect statute for Count 3, he argues that the district court was required to
consult the transcript of the oral pronouncement of sentence before amending the
judgment. We disagree. The indictment, jury instructions, and jury verdict all
demonstrate that Valenzuela was charged with and convicted of a violation of 18
U.S.C. § 2241(a)(1) and (2), rather than 18 U.S.C. § 2244(a), in Count 3. Under
these circumstances, the district court did not clearly err in correcting the statute of
conviction for Count 3. See United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir.
1985) (grant of a Rule 36 motion is reviewed for clear error).
Moreover, contrary to Valenzuela’s argument, changing the statutory
citation for Count 3 from 18 U.S.C. § 2244 to 18 U.S.C. § 2241(a)(1) and (2) does
not constitute a substantive change in the judgment because the amendment does
not alter the term of Valenzuela’s sentence. See United States v. Kaye, 739 F.2d
488, 491 (9th Cir. 1984) (Rule 36 permitted amendment to add omitted count
numbers but not amendment to increase sentence based on district court’s
inadvertent failure to impose sentence on omitted counts).
AFFIRMED.
2 15-10580