United States v. Anniel Gomez , 700 F. App'x 963 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17047
Non-Argument Calendar
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D.C. Docket No. 2:07-cr-14039-KMM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANNIEL GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 7, 2017)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Defendant Anniel Gomez appeals the district court’s denial of his “Motion
for Proving Official Record and Correcting Clerical Error,” filed pursuant to
Federal Rule of Criminal Procedure 36. After careful review, we affirm.
I. BACKGROUND
In 2007, Defendant pled guilty pursuant to a written plea agreement to
conspiring to maintain a place to manufacture or distribute marijuana, in violation
of 21 U.S.C. §§ 846 and 856(a)(1), and conspiring to manufacture, distribute, and
dispense 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)
and 846. At the change-of-plea hearing, the Government explained that if the case
had gone to trial, the Government would have proved that Defendant and his co-
conspirators conspired to grow and harvest marijuana inside several homes
throughout Florida. The Government also stated that it would have established that
during the conspiracy, Defendant got into an altercation with his uncle, Jesus
Miranda, which ultimately led to Defendant stabbing Miranda to death. Defendant
agreed to the factual basis for the plea, and acknowledged that Miranda’s death
could affect his guidelines calculations.
In anticipation of sentencing, the probation officer prepared a Presentence
Investigation Report (“PSR”). The probation officer grouped both counts together
and applied a base offense level of 38, pursuant to U.S.S.G. § 2A1.2, because the
offense involved the second-degree murder of a victim. With a three-level
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reduction for acceptance of responsibility, the total offense level was 35. Based on
a total offense level of 35 and a criminal history category of I, the guideline range
was 168 to 210 months’ imprisonment. Defendant objected to the base offense
level, arguing that the conduct related to Miranda’s death constituted voluntary
manslaughter, not second-degree murder.
At sentencing, Defendant reiterated his objection to the base offense level.
The Government called two witnesses, including Defendant’s brother, who
testified that Defendant and Miranda got into a fist-fight over money, Miranda
grabbed Defendant by the neck, and while Miranda was choking him, Defendant
stabbed Miranda twice in the back. Miranda fell to the floor and asked Defendant,
“[W]hy are you doing this to me.” Defendant told Miranda he “deserve[d] it,” and
then stabbed Miranda in the chest. The Government also called Defendant’s
brother-in-law, who testified that Defendant had told him that he killed Miranda.
Finally, Defendant testified on his own behalf, and stated that he was not involved
in his uncle’s death. The district court found that Defendant’s conduct constituted
second-degree murder and ultimately sentenced him to 365 months’
imprisonment. 1
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Based on Defendant’s testimony, which contradicted the factual basis for the plea, the district
court determined that he was not entitled to a reduction for acceptance of responsibility and that
he also warranted an upward adjustment for obstruction of justice. As a result, the district court
calculated an amended guideline range of 292 to 365 months’ imprisonment.
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We affirmed on appeal, concluding in relevant part that the district court did
not clearly err by finding that Defendant’s conduct constituted second-degree
murder. See United States v. Gomez, 334 Fed. App’x 242, 247 (11th Cir. 2009).
Defendant later filed an unsuccessful motion to vacate pursuant to 28 U.S.C.
§ 2255.
In 2016, Defendant filed the present “Motion for Proving Official Record
and Correcting Clerical Record,” pursuant to Rule 36. 2 Defendant explained that
he had pled guilty in 2007 to conspiring to maintain a place to manufacture
marijuana and conspiring to manufacture and distribute 100 or more marijuana
plants. However, he had recently filed a motion to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2) and Amendment 782 to the Sentencing Guidelines, but that
motion was denied on the ground that Defendant was sentenced based on murder,
not drugs. He argued that it was unconstitutional that he was sentenced for murder
and that the record needed to be corrected.
The district court denied Defendant’s motion and this appeal followed.
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In his motion, Defendant also referenced Federal Rule of Criminal Procedure 27, which
provides that “[a] party may prove an official record, an entry in such a record, or the lack of a
record or entry in the same manner as in a civil action.” See Fed. R. Crim. P. 27. On appeal,
Defendant makes only a passing reference to Rule 27 by stating that he “is certain that the
Government concedes that the subject documents are in fact authentic, and we can move on to
the clerical error.” He has therefore abandoned any argument pertaining to Rule 27. See
Sapuppo v. Allstate Fla. Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (explaining that a party
abandons an argument on appeal by only making a passing reference to the claim).
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II. DISCUSSION
Defendant argues that the district court erred by denying his motion to
correct the record under Rule 36 because the PSR incorrectly included his uncle’s
death in his guidelines calculations.
We review de novo a district court’s application of Rule 36. United States v.
Davis, 841 F.3d 1253, 1261 (11th Cir. 2016). Rule 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.” Fed. R. Crim. P. 36. “It is clear in this
Circuit that Rule 36 may not be used to make a substantive alteration to a criminal
sentence.” Davis, 841 F.3d at 1261 (quotations omitted). Indeed, Rule 36 is meant
to correct errors that are “minor and mechanical in nature.” United States v.
Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004).
Here, the district court did not err by denying Defendant’s Rule 36 motion
because he requested a substantive, not clerical, change to his PSR. At sentencing,
Defendant objected to the PSR’s assignment of a base offense level of 38 under
U.S.S.G. § 2A1.2—the provision governing second-degree murder. The district
court overruled Defendant’s objection and calculated his guideline range pursuant
to § 2A1.2. Defendant’s request for correction of his PSR pertaining to the alleged
erroneous application of § 2A1.2 in calculating his guideline range is not “minor
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and mechanical in nature,” as it would substantively alter his guideline range.
Portillo, 363 F.3d at 1165. Because Rule 36 cannot be used to make a substantive
change, the district court properly denied Defendant’s motion.
AFFIRMED.
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