FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 26, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-14636

Non-Argument Calendar

________________________

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 
1Fed. 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

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
3

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
4

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
2We 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

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
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.

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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). 
4The 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

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. 
5Rule 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

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 Witness 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
6Fed. 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

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.