### FI LED U.S . COURT OF APPEALS ELEVENTH CI RCUIT March 26, 2004 THOMAS K. KAHN

CLERK [P UBLI SH] IN THE UNIT ED STATES COURT OF APPEALS FOR THE ELE VEN TH C IRCU IT

________________________ No. 03-14636 Non-A rgument Calendar

________________________ D. C. Docket N o. 98-00045-CR -1-2
UN ITE D S TA TE S O F A M ER ICA , Plain tiff-A ppe llee,
versus
BY RO N L EO NE L P OR TIL LO , De fend ant-A ppe llant.

________________________ Appeal from the United States Distri ct Court for th e N orth ern D istrict o f G eorg ia

_________________________ (March 26, 2004) Bef ore C AR NE S, B AR KE TT and HU LL , Circ uit Ju dge s. PER CUR IA M: Byron P ortillo appeals pro se the district court’s correcti on of his sentence1 Fed. R. Crim. P. 36 provides that “[a]fter giving any notice it considers appropriate, the court may at a

ny time corre ct a clerical error in a judg ment, order, or other part of the recor d, or correct an error in the rec ord arising from oversight or omission.” 2 pursuant to Fed. R. Crim. P. 36. 1 Po rtillo w as co nvic ted o f (1) con spira cy to poss ess and d is tr ibute fra udul ent al ie n re gis tr at ioncar ds i n vi olati on of 18 U.S. C. §§ 3 71, 1 546 (a), 1 028 (a)(2 ) and 8 U .S.C . § 13 24( a)(1 )(A )(iv) ; (2) c ons pirac y to pos sess w ith inte nt to d istribu te coc aine, m etham phe tamin e, and amp hetam ine, in violation of

21 U.S.C. § 846; a

nd (3) maint aini ng a plac e for t he dist ribut ion of cocai ne and methamphetamine in viol ati on of 21 U.S.C. § 856(a )(1). At the sente ncing hea

ring, the di stri ct cour

t oral ly orde red Porti llo to pay res tit ution in the amount of $14, 800, jointly and sever all y with hi s co-cons pirator, Is idro Silva Ru bio, to six alie ns liste d in R ubio ’s Pr esen tence Inv estiga tion R epo rt (“P SI” ). The ali ens were vi cti mized by Portill o and Rubio’s fraudul ent sc heme of sel ling and d istributing illegal imm igration d ocum ents. H ow ever, co ntrary to th e cour t’s oral ruli ng, the subsequent writt en judgment and commitment order provided that Po rtillo w ould pay r estitutio n join tly and seve rally w ith R ubio to the Ge org ia Bureau of Inve sti gati on (“GBI”), rathe r than to the si x ali ens. Portill o did not app eal his con victio n or sente nce b efor e this C our t. Fo ur ye ars late r, the c our t sua spo nte issued an order pursuant t o Fed. R. Crim. P. 36 to correct t wo clerical e rrors that it fo und in P ortillo ’s jud gm ent. T he co urt fir st fou nd th at it had erre d in3

ordering P ortillo’s restitution to be paid jointly and severally with R ubio, because Rub i o h adne ve r b ee n o rd er edt o p ayre sti t ut i on whe n h e h adbe ense nt en ce d two years prior to Portil lo. Thus, the cour t omit ted t hat portion of t

he judgment requiring payment

“jointly and sever all y with Is idro Silva Rubio (Case No. 2:96- cr-33). ” Second, t

he court discove red that it

had erre d by ordering rest itution to be paid t o the GBI rat

her tha n to the six i lle gal al iens l ist ed in Rubio’ s PSI. Thus, t he court corrected the ord er to substitute the six aliens for the GBI a s payees. Because we find that the errors correc ted by t he court in Porti llo’ s judgment

and
com mitm ent o rder we re m erely c lerical, w e aff irm. I. DISCUS SION We review the district

court’s appl icati on of Fed. R. Crim. P. 36 to correct i t s j ud gme nt

at se nt en ci ng as a m at

t er of l aw de novo . See United S tates v. Pease , 331 F.3d 809, 812, 816 (11th Cir . 2003) . The only issue that

we must determine in this appeal is whether t he distri ct court had juris dicti on under Fed. R. Crim. P. 36 to correct the ori ginal writt en judgment s entenc ing Porti llo. Fed. R. Cri m. P. 36 provi des that “[ a]ft er giving any notic e it con sider s app rop riate, th e cou rt ma y at an y time corr ect a c lerical e rror in a judgment, order, or ot her part of the r ecord, or correct an error in the r ecord aris ing from over sight

or omissi on.” Thus, the ques tion be fore us i s whether t he4

two erro rs co rrec ted b y the c our t con stituted “cleric al mis takes ” that th e cou rt is all owed to corre ct “ at any time” . It

is cl ear i n this Circui t that Rule 36 may not be used “to make a substant ive alt erati on to a criminalsentence. ” United States v. Pease , 331 F.3d 809, 816 (11th Cir. 2003) (holding that the di stric t court err ed when it use d Rule 36 to amend the def endant’ s sent ence t o include an order of forfeit ure that had been agreed t o in the plea a greement, but which the court faile d to make a part of i ts j udgment at sente ncing)( cit ing to United States v. Whitti ngton , 918 F.2d 149, 151 (11t

h Cir. 1990) (holdi ng that Rule 36 may not

be used by t

he dist rict court to fundamenta lly alt er the defendant ’s se ntence from thre e to five years impris onment in a n att empt to c onform the s entenc e to t he int enti on of the partie s as re flected in the plea a gree men t, wh ich p rov ided that th e pris one r w ould
serv e exa ctly fiv e year s); United States v. Werber , 51 F.3d 342, 347 (2d Cir. 1995) (find ing th at “Ru le 36 cov ers o nly m inor , unc ontr ove rsial er rors . . .” and that a dist rict court ha s no juri sdiction to c orrect a defendant’s sente nce where t he
corr ection s are a imed at rem edyin g err ors o f law rathe r than mer e tran scrip tion) ). How ever, a dis trict

court may correct

“clerical”errors in t

he written judgment at any tim e un der R ule 3 6, fo r exa mp le, to en sure that th e jud gm ent is in acco rd w ith the o ral sen tence . United States v. Bat es , 213 F.3d 1336, 1340 (11th Cir . 2000) (citing United States v. Khoury , 901 F.2d 975, 977 (11th Cir. 1990)). Where a2 We are not persua ded by Portillo’s argume nt that be cause the names o f these in dividuals were not specifi cally

listed in hi s indictme

nt, they are not e ntitled to r

estitution . We note that in Count Two o f the indic

tment, six dif

ferent occasions are de scribed

where Portillo conspired wi th Rubio to sell to “an illegal alien a departure car d 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 t

hat is pronounced orally and unambiguously conflict s with the writt en ord er of judg men t, the o ral pr ono unc eme nt co ntro ls. United States v. Ridgeway , 319 F.3d 1313 , 1315 (11th Cir. 2003). Portil lo argue s that

the di stri ct cour

t err ed in i ts appl ication of Rule 36 because the mist akes that were correc ted in his s entence were substant ive rather than cleri cal in nat

ure. Portil lo further ar gues that because the court’ s order under Rule 36 eff

ectively amounts to a

resent encing, Fed. R. Cri m. P. 43(a) (3) and due pro cess r equ ire tha t he w as en titled to be p resen t wh en th e cou rt cor rected his sente nce. W e do not a gree . W ith reg ard to the co urt’s c orre ction of th e jud gm ent to state that Porti llo shal l pay restituti on to the six al iens, we find that the mistake
wa s cleric al in th at it w as m inor and mec han ical in n ature . Th e Ru le 36 ord er did not fundament all y alt er Porti llo’ s sent ence, because it di d not inc rease the rest itution amount initi all y imposed at sent encing. The order mere ly cha nged the payees f rom the G BI to th e six aliens w ho w ere direc tly injured b y Po rtillo’s crime. 2 Furthermore, the court was correct to change the writt en judgment so thatPSI for By ron Leonel Portillo, June 21, 1999, at 7-8. We also reject Portillo’s claim that he should not b e requir

ed to make

restitutio n to alien s who wer

e illeg al and who alleg edly facilita ted in the distributi on of fra

udulent do cuments. We note tha t in some cases, Porti llo repres ented to t

he aliens that the d

ocuments were genuine. P SI for Portillo a t 8. In any event, we need not decid e Portillo’ s objection to making pay ment to the

aliens on this gro und, bec ause Portillo failed to object to it at sentencing or raise it on direct appeal.

3 In Bonner v. City of Pricha rd , 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc ), the Eleventh Circuit a dopted as binding p

recede nt all Fif th Circuit d

ecisions handed d own prior to the close of business on September 30, 1981. 6 it r efle cts t

he oralsente ncing pronounc ement. With regar d to the court’ s dele tion of the phr ase fr om the writ ten j udgment requiring t hat Port ill o pay the rest itution “jointly and seve rally” w ith his co-c ons pirato r Ru bio, w e also find that th is
corr ection wa s pro per u nde r Ru le 36 , wh ich allo ws the co urt to “corr ect an erro r in the record ari sing from oversight or omissi on.” Here, at se ntencing, t he court overlooke d the fa ct t

hat i n Rubio’s s entenc e imposed t wo years earli er, he had not been order ed to pay

rest itution. Agai n, the court’ s Rule 36 orde r did not make Po rtillo’s s enten ce m ore o nero us. In the o rigin al jud gm ent o rder , Po rtillo w as fu lly liabl e for payment of the res tit ution amount, and in the amended judgment order, he re main s fully liable. See e.g. , Aretz v. United States , 604 F.2d 417, 432 n.19 (5th Cir . 1979) 3 (no ting th at un der G eorg ia law , joint a nd s ever al liability is define d as the sit

uati on where two concurr ent ca uses ca use an i njury a

nd the plai ntif f may rec over against either or both of t he negli gent ac tors) (cit ati on
om itted).4 The former version of Rule 35 was similar to the current Rule 36 and provided that

“[t]he court may corre ct an illegal sentence at any time....” Fed.R.Crim.P. 35(a) (1987)
. 7 Turning to Portill o’s ar gument that he was entitl ed to be pr esent when the court c orrect ed his s entenc e pursuant to Rule 36, we do not agree that eit her Fed. R. C rim. P roc. 4 3 or due pro cess o blige s the c our t to en sure Po rtillo’s p resen ce. It is t rue that “ . . . t

he defendant must be present at . . . s entenc ing.” pursuant to Fed. R. C rim. P . 43( a). A dditio nally, th e righ t to be pres ent at o ne’s s enten ce is
con stitutio nally b ased
. See United States v. Huff , 512 F.2d 66, 71 (5th Cir . 1975) (citing Mem pa v. Rhay , 389 U.S . 128 (19 67) ). H ow ever , we hav e held in this Circui t that the right

to be pre sent at one’ s sent encing “ does not t ransl ate into a right to be pres ent whenever judicialaction modifyi ng a sentence is taken.” United State s v. Ja ckson , 923 F.2d 1494, 1496 (11th Cir . 1991). We have alre ady deter mined that the court’ s Rule 36 orde r in Port ill o’s ca se did not amount to a
resen tencin g w here in the sente nce w as su bstan tially ch ang ed. A s w e held in Jackson , where “ the entire s entenc ing packa ge has not been set aside , a cor

rect ion of an il legalsente nce does not constitute a rese ntencing requiring the presenc e of the defendant, so long as the modification does not make the sent ence more onerous.” Id. , 923 F.2d at 1497 (holdi ng that

the def endant di d not need to be pres ent u nde r Ru le 43 wh en th e distr ict cou rt mo dified his se nten ce fr om forty to thirt y years i mprisonment pursuant to the former Fed. R. Crim. P. 35 (1987)) 4

.5 Rule 35(a ) provide s that [w]ithin

7 days after s entenci

ng, the court ma y c orrect a sentence that resulted from arithmetical, technica l, or other clear error.”

8 Furthermore , Rule 43 pr ovides e xcepti ons for when a def endant’ s prese nce is not requir ed. Rule 43(b)(4) s tat es that “[ a] def endant ne ed not be pr esent under any of the fol lowing ci rcumsta nces . . . [ t]he proceeding involve s the c orrection or reduction of a sen tence under R ule 35 . . .” While Ru le 43 does no t specifically l ist Rule 36 as an exception, Rule 35(a) 5 is analogous to t he court’s corr ections here under Rule 36 in that

it a llows t

he court to corr ect e rrors in the se ntence that have arithm etical, tec hnic al, or s om e oth er so rt of c lear er ror. F inally, it is the ru le in this Circui t that while it may be prefe rable to have t

he defendant pres ent when the court co rrects clerical er rors in th e judg men t unde r Ru le 36, “the d efend ant’s absence [cannot] rise t o a deprivati on of due process.” Cook v. U nited Stat es , 426 F.2d 1358, 1360 (5th Cir. 1970). Finally, Port ill o makes a number of substa ntive chall enges t o the re sti tuti on order itse lf: (1) t

hat the res tit

ution was ill egal because t he GBI cannot be a payee beca use it d oes n ot qu alify as a “victim ” un der th e V ictim W itness Pro tection Ac t, and (2 ) that the co urt failed to consid er his inab ility to pay restitution . Portillo’s first claim of error f

ails bec ause he was not ordered to pay rest ituti on to the GBI, this was simply

a cle rica l mistake that the court c orrect ed in i ts Rule 36 order. The6 Fed. 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 appe aled; or (ii) the filing of the governme nt's notice of appeal.”

9 remaining claim fail s becaus e alt hough Portil lo obje cted at sent encing to the restitu tion o rder ed o n gr oun ds o f his in ability to pay, h e failed to ap peal it to this Court. The time al lowed Porti llo f or chal lengi ng his re sti tuti on order ent ered on August 3, 1999, has long since expired under Fed. R. App. P. 4(b)(1)(A), 6 and he may not n ow challe nge it in this app eal of the d istrict co urt’s R ule 3 6 or der. II . CONCL USION Based on the foregoi ng, we AFFIRM the di stri ct cour t’s correc tion of Po rtillo’s s enten ce pu rsua nt to F ed. R . Crim . P. 3 6.