[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10085

Non-Argument Calendar

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D.C. Docket No. 1:04-cr-20159-FAM-6

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JULIO ACUNA, 

a.k.a. Chino,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 10, 2018)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Julio Acuna appeals the district court’s denial of his motion for clarification 

of his offense of conviction, which is construed as a motion to correct a clerical 

error under Federal Rule of Criminal Procedure 36. On appeal, he argues that the 

district court erred in refusing to correct a discrepancy between the judgment, 

which indicated that he had been convicted under 18 U.S.C. § 1962(d), and 

notations on the district court docket sheet, which indicated that his § 1962(d) 

charge had been dismissed and he had been convicted under 18 U.S.C. § 1963 

instead.

We review the district court’s application of Rule 36 de novo. United States 

v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016), cert. denied, 137 S. Ct. 2318 

(2017).

Rule 36 provides that “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.” Fed. R. Crim. P. 36. This rule applies only to 

clerical mistakes, and cannot be used to make substantive changes to a criminal 

sentence. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) 

(concluding that the district court properly applied Rule 36 to correct a clerical 

error in the judgment so that the judgment corresponded with the oral 

pronouncement of the sentence). When there is a clerical error in the judgment, we

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may remand with instructions to correct the error. United States v. James, 642 

F.3d 1333, 1343 (11th Cir. 2011). 

Section 1962, titled “Prohibited Activities,” describes racketeering conduct 

that is unlawful. See 18 U.S.C. § 1962. Section 1962(d) specifically prohibits 

conspiring to violate any of the provisions contained in the preceding subsections. 

18 U.S.C. § 1962(d). Section 1963, called “Criminal Penalties,” establishes the 

penalties for violating § 1962, including imprisonment and forfeiture. 18 U.S.C. 

§1963. The section provides that an individual who violates § 1962 shall be 

imprisoned for life if the violation is based on a racketeering activity for which the 

maximum penalty includes life imprisonment. 18 U.S.C. § 1963(a). 

Here, it is clear that Acuna was convicted under § 1962(d), and his judgment 

properly reflects that. The notations on the district court docket sheet indicating 

that the § 1962(d) charge was dismissed and that Acuna was convicted under 

§ 1963, therefore, are erroneous. Though such error is the kind of clerical mistake 

subject to correction under Rule 36, the error is harmless and has not resulted in 

any prejudice to Acuna, and the discretionary language of the Rule directs that the 

district court is under no obligation to correct it.

AFFIRMED.

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