CLD-036 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-3474

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UNITED STATES OF AMERICA

v.

FRANK MARTINES,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No 2:94-cr-00127-003)

District Judge: Honorable Ronald L. Buckwalter

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Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

November 7, 2013

Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

(Opinion filed: November 12, 2013)

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OPINION

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PER CURIAM

Frank Martines, a federal prisoner, appeals pro se from the District Court’s order 

denying his motion to correct clerical errors. For the following reasons, we will 

summarily affirm. 
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I.

In 1995, the District Court convicted Martines of racketeering, murder in aid of 

racketeering, and related offenses, and, in 1996, sentenced him to life imprisonment plus 

various concurrent sentences. In July 2013, Martines filed a motion to correct purported 

clerical errors pursuant to Fed. R. Crim. P. 36. Specifically, Martines sought correction 

to his judgment, which lists the title and section of each offense but not the statutory 

subsection. He argued that the subsection should be included for counts 10 and 12. He 

also argued that the Court’s deputy clerk should have retyped the judgment to reflect the 

correct counts for which a life sentence was imposed instead of making the corrections by 

interlineation. The Government filed a response, contending that Martines’s requests 

were frivolous because they were unnecessary. The District Court denied the motion, 

agreeing with the Government’s arguments. This timely appeal followed. 

II.

We have jurisdiction under 28 U.S.C. § 1291.1 We may summarily affirm if the 

appeal does not present a substantial question. See 3d I.O.P. 10.6; see also Murray v. 

Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

Rule 36 provides that “the court may at any time correct a clerical error in a 

judgment . . . arising from oversight or omission.” A clerical error “must not be one of 

 

1 Apparently, we have not established in this Circuit a precise standard for review of Rule 36 motions. Although

there is disagreement among the circuits, see, e.g., United States v. Mueller, 168 F.3d 186, 188 (5th Cir. 1999) 

(abuse of discretion); United States. v. Burd, 86 F.3d 285, 287 (2d Cir. 1996) (de novo), we need not resolve that 

issue today because we would affirm under any available standard. 
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judgment or even of misidentification, but merely of recitation, of the sort that a clerk or 

amanuensis might commit, mechanical in nature.” United States v. Guevremont, 829 

F.2d 423, 426 (3d Cir. 1987) (internal quotation and citation omitted). 

Here, the omission of the statutory subsections from Counts 10 and 12 of 

Martines’s judgment did not result in a substantive error in his sentence. In fact, it is not 

even clear that it resulted in any error at all. The cited statutory sections are not incorrect; 

Counts 10 and 12 of the judgment rightly refer to 18 U.S.C. §§ 1951 and 1955, 

respectively. Rather, the judgment is simply imprecise; it does not refer to the specific 

statutory subsections. Cf. United States v. Hanna, 639 F.2d 192, 194 (5th Cir. 1980) 

(holding that it was a “clerical error readily correctable” under Rule 36 where the 

judgment cited a different subsection than that for which the defendant was charged and 

tried, but where the penalties were the same); United States v. Wimbush, 103 F.3d 968, 

970 (11th Cir. 1997) (finding that a judgment that incorrectly cited a non-existent 

statutory subsection was merely a clerical error). Even if the omission of the statutory 

subsections does constitute a clerical error in the judgment, the District Court did not 

abuse its discretion in declining to correct it via Rule 36. See United States v. Hovsepian, 

307 F.3d 922, 934 (9th Cir. 2002) (finding no abuse of discretion in denial of Rule 36 

motion despite the fact that “undisputed clerical errors existed”). As Martines himself 

conceded, this omission is trivial. When read in its totality, the judgment order 

accurately reflects the judgment pronounced by the Court. 

Martines’s other argument is even more unavailing. He contended that the District 

Court’s deputy clerk should have retyped the judgment to reflect the correct counts for 
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which a life sentence was imposed instead of making the corrections by interlineation. 

The judgment was indeed corrected. That it was not corrected in the way that Martines 

would have preferred is of no moment. The District Court therefore did not abuse its 

discretion in correcting the error by interlineation instead of by retyping the judgment. 

For the reasons given, the District Court properly denied Martines’s motion to 

correct clerical errors. Accordingly, because this appeal presents no substantial question, 

we will summarily affirm the judgment of the District Court. Murray, 650 F.3d at 248; 

see also 3d Cir. I.O.P. 10.6.