12-429-cr

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 MUST 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 19

th day of April, two thousand thirteen.

PRESENT: JOHN M. WALKER, JR.,

DENNY CHIN,

Circuit Judges,

JANE A. RESTANI,

Judge.

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UNITED STATES OF AMERICA,

Appellee,

-v.- 12-429-cr

LUIS DIAZ,

Defendant-Appellant,

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.
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ROBERT MERCADO, MICHAEL WARD, AKA

Black Mike, VICTORIA ALVERIO, AKA

Victoria Mora, AKA Evelyn,

Defendants.

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FOR APPELLEE: Andrea L. Surratt, Brent 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-appellant Luis Diaz, proceeding pro se,

appeals from the district court's memorandum and order entered 

January 17, 2012, denying his motion to correct a clerical error 

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

underlying facts, the procedural 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.
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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 supervised 

release: the court never specified that the term 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."). 
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Furthermore, the district court properly concluded 

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

convictions needed no correction. The "Nature of Offense" was 

described as "Possession of Firearm"; it was further 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 offenses for which Diaz was convicted 

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 fouryear term.