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United States v. Diaz



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLAT E PROCEDURE 32.1 AND THIS COURT' S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MU ST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the City of New York, on
the 1 9 th day of April , two thousand t hirteen

.

PRESENT: JOHN M. WALKER, JR.,

DENNY CHIN ,

Circuit Judges , JANE A. RESTANI ,

Judge

. *

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UNITED STATES OF AMERICA,

Appellee ,

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LUIS DIAZ , Defendant

- Appell ant ,

GREGORY COLLAZO, VICTOR ALVAREZ, JUAN DIAZ, LUIS CORDERO, MIGUEL RAMOS, AKA Mike, PEDRO OQUENDO, AKA El Grande, AUREO GONZALEZ, CARMELO PACHECO, AKA Papa Pericho, ALBERTO RODRIGUEZ,

* The Honorable Jane A. Restani, of the United States
Court of International Trade , sitting by designation.- 2

-

ROBERT MERCADO, MICHAEL WARD, AKA Black Mike, VICTORIA ALVERIO, AKA Victoria Mora, AKA Evelyn ,

Defendant s

. **

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FOR APPELLEE : Andrea L. Surratt, Bren t S. Wible, Assistant United States Attorneys,
for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT

- APPELLANT : Luis Diaz, pro se , Otisville, New
York.

Appeal from the United States District Court for the

Southern District of New York ( McKenna , J. ).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the memorandum and order of the district court is

AFFIRMED

.

Defendant

- a ppellant Luis Diaz, proceeding pro se ,

appeals from the district court's memorandum and order entered

January 1 7 , 2012, denying his motion to correct a clerical error

in the judgment. We assume the parties' familiarity with the

underlying facts, the proce dural history of the case, and the

issues on appeal.

Rule 36 of the Federal Rules of Criminal Procedure

provides that, after giving appropriate notice, "the court may

** The Clerk of the Court is directed to amend the caption to conform to the above.- 3

-

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. We

have described this rule as providing only "a limited avenue for

correction of a judgment." United States v. DeMartino , 112 F.3d

75, 79 (2d Cir. 1997). Rule 36 " does not authorize the court to

amend the oral sentence itself or to modify the written judgment

to effectuate an intention that the court did not express in its

oral sentence. " Id. (citing United States v. Werber , 51 F.3d

342, 343, 347 (2d Cir . 1995)). We review de novo a district

court ' s decision on a Rule 36 motion. See United States v.

Burd , 86 F.3d 285, 287 (2d Cir. 1996)

.

Here, the written judgment accurately reflected the

district court ' s oral pronouncement of Diaz ' s term of supervise d

release : t he court never specified that the te rm of supervised

release was linked to a particular count

. Thus, the relief Diaz

seeks

-- tying the period of supervised release to a specific

count in the indictment

-- is not the sort of " clerical error "

contemplated by Rule 36. See Werber , 51 F.3d at 347 ("Rule 36

authorizes a district judge, at any time, to amend the written

judgment so that it conforms with the oral sentence pronounced

by the court. What Rule 36 does not permit, however, is

amendment of the oral sentence itself.").- 4

- Furthermore, the district court pr operly concluded

that the judgment ' s description of the 18 U.S.C. § 924(c)

convictions needed no correction . T he "Nature of O ffense" was

described as "Possession of Firearm" ; it was fur ther identified

by reference to a statute, by stating the date on which the

offense had concluded, and by identifying particular counts of

the indictment associated with the offense. As the judgment

accurately reflected the offense s for which Diaz was con victed

and sentenced , no clerical error is apparent. Accordingly, the

district court did not err when it denied Diaz ' s motion to

correct his judgment pursuant to Rule 36. 1

We have considered Diaz's remaining arguments and

conclude they are without merit. For the foregoing reasons, we

AFFIRM the memorandum and order of the district court

.

FOR THE COURT:
Catherine O' Hagan Wolfe, Clerk

1 Indeed, the district court did make an error, but in Diaz's favor. Although Diaz was subject to a mandatory minimum term of supervised release of five years, see 21 U.S.C.
§ 841(b)(1)(A) (1990), the district court only imposed a four

year term.