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 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,

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2008

Charles R. Fulbruge III

Clerk
No. 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 equaled the total restitution amount imposed at

sentencing. Importantly,the district court's amended judgment did notincrease

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
No. 07-40593

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). 

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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 36.1It is enough that under a

reasonable reading ofthe 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.