### UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 07-40593 Summary Calendar

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 ofhis 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 howthe 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, United States Court of Appeals

Fifth Circuit 

### F I L E D January 14, 2008 Charles R. Fulbruge III ClerkNo. 07-40593

2 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 equal ed the total restitution amount imposed at sentencing. Importantly, the district court's amendedjudgment 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 itsjudgment, 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 ofits original judgment
was a correction ofa "clerical error" under Rule 36, or an alteration ofSpencer's sentence subject to the seven-day limitation of Rule 35(a). Spencer argues that since theamendedjudgment corrects an "arithmetical error," it cannot be deemed a "clerical error" for purposes of Rule 36, and thus theseven-day time limitation of Rule 35 invalidates the amended judgment. This argument overlooks the reality that Rule 35, by its very title, addresses correctionsof"sentences." Paragraph (c) ofRule 35specifically 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 appropriateNo. 07-40593

1 At least one circui t has held that a district court may, in limited circumstances, empl oy 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 o f a forfeiture provision in a written judgment, even though such was not announced orally, because the defendant had previously stipulated toforfeiture, and because a preliminary order offorfeiture had been entered). 3 mechanism for amendments that do not substantively alter the sentence
announced orally but rather correct errors in written judgments. See United Statesv. 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 ofsentence toconform to the oral sentence pronounced by thejudge."); cf. Uni ted 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, whi ch governs clerical errors, is not an appropriate vehicle for clarification."). In amending itsjudgment, the district court merely corrected its original written judgment to conform with the sentence announced orally. We need not today sketc

h the outer parameters of Rule 36. 1 It is enough that under a reasonable reading ofthe relevant rules, aswell as relevant case law, the district court'samendment amounts toa clerical revision that did not substantively alter Spencer's sentence. Therefore, the time limitation ofRule 35 is inapplicable. See United States v. Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004) (holding that an amendment pertaining to the allocation ofrestitution, without altering the total restitution amount, is a "clerical" correction, as it is "minor and mechanical in nature"). AFFIRMED.