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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15594
Non-Argument Calendar
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D.C. Docket No. 0:06-cr-60238-PCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY MINNIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 12, 2019)
Before JILL PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Bobby Minnis, through his lawyer, appeals the district court’s denial of
Minnis’s pro se motion to correct illegal sentence. No reversible error has been
shown; we affirm.
In 2006, a federal grand jury charged Minnis with one count of traveling in
interstate commerce for the purpose of engaging in illicit sexual conduct with a
minor, in violation of 18 U.S.C. § 2423(b). Minnis pleaded guilty pursuant to a
written plea agreement.
Meanwhile -- based on the same conduct underlying Minnis’s federal
offense -- Minnis had been charged earlier in Florida state court with several
counts of lewd and lascivious battery (the “2005 case”). While awaiting trial in the
2005 case, Minnis attempted to hire a hitman to murder the 14-year old victim
involved in the 2005 case. Based on that conduct, Minnis was charged in state
court with solicitation to commit murder (the “2008 case”). Minnis pleaded guilty
to both state offenses. In the 2005 case, the state court sentenced Minnis to a total
of 20 years’ imprisonment. The state court later imposed a 20-year sentence in the
2008 case, to run concurrent and coterminous with the sentence in the 2005 case.
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At Minnis’s federal sentencing hearing, both the government and Minnis
requested that Minnis’s federal sentence run concurrent with Minnis’s state court
sentences. In response, the sentencing judge expressed deep concern about the
seriousness of Minnis’s offenses. The sentencing judge said expressly that a
concurrent sentence -- which would result in a total sentence of 20-years’
imprisonment for all of Minnis’s offenses -- would be inappropriate and
insufficient punishment in the light of the 18 U.S.C. § 3553(a) factors. The district
court focused especially on Minnis’s history and characteristics, the seriousness of
his offense, and the need to protect the public.
The district court sentenced Minnis to 97 months’ imprisonment: the high
end of the sentencing guidelines range. The district court then said that the “terms
of imprisonment shall run concurrently with the [2005 case] and shall run
concurrently and consecutively with regard to the [2008 case]. To the extent -- all
but five years shall run concurrently. The balance of five years shall run
consecutive to his State imprisonment.”
The written judgment -- entered in October 2008 -- provided that Minnis’s
97-month “term of imprisonment shall run concurrently with [the 2005 case]. This
term of imprisonment shall also run both concurrently and consecutively to [the
2008 case] to the extent that all but five (5) years shall run concurrent with [the
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2008 case] and five (5) years shall run consecutively.” Neither Minnis nor the
government appealed.
In 2016, the district court sua sponte entered an amended judgment pursuant
to Fed. R. Crim. P. 36. The amended judgment provided that Minnis’s 97-month
sentence “shall commence when the defendant has thirty-seven (37) months
remaining on his sentences in [the 2005 case] and [the 2008 case], and shall run
concurrently with those sentences until sixty (60) months of the term remain, at
which point the sentence will run consecutively to [the 2005 case] and [the 2008
case].”
Minnis filed several pro se motions challenging the 2016 amended
judgment, including the motion to correct illegal sentence at issue in this appeal. *
The district court denied Minnis’s motion, concluding that the 2016 amended
judgment made no substantive change to Minnis’s original 2008 judgment.
Instead, the district court said that the amended judgment clarified the original
judgment and gave effect to the sentencing court’s intention to have Minnis serve
five years’ imprisonment in addition to his state court sentences.
*
Contrary to the government’s argument, Minnis appealed timely the district court’s 28
November 2017 denial of his motion to correct illegal sentence. Minnis delivered to prison
officials his notice of appeal on 8 December 2017: within the pertinent 14-day time limit. See
Fed. R. App. P. 4(b)(1)(A)(i).
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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. Courts may not use Rule 36 to make substantive changes to a
criminal sentence. United States v. Portillo,
363 F.3d 1161, 1164 (11th Cir. 2004).
“When the orally imposed sentence differs from the written order of
judgment, the oral sentence controls.” United States v. Ridgeway,
319 F.3d 1313,
1315 (11th Cir. 2003). Under Rule 36, the district court may “at any time” correct
a “clerical” error in the written judgment “to ensure that the judgment is in accord
with the oral sentence.”
Portillo, 363 F.3d at 1164. “In determining the terms of a
sentence, it is the intent of the sentencing judge which controls, and that intent is to
be determined by reference to the entire record.” United States v. Purcell,
715
F.2d 561, 563 (11th Cir. 1983).
On this record, the sentencing judge intended unambiguously to sentence
Minnis to a term of imprisonment, five years of which would run consecutively to
Minnis’s state court sentences in the 2005 and the 2008 cases. The sentencing
judge said expressly that a 20-year total sentence was insufficient in this case based
on consideration of the section 3553(a) factors. The sentencing judge also
concluded the oral pronouncement by ordering that “all but five years shall run
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concurrently. The balance of five years shall run consecutive to his State
imprisonment.”
To the extent that the original written judgment conflicted with the
sentencing judge’s oral pronouncement, the district court was authorized under
Rule 36 to amend the written judgment to reflect accurately the oral sentence. See
Portillo, 33 F.3d at 1164. The amended judgment made no substantive change to
the oral sentence and, instead, clarified how the sentence was to be carried out
consistent with the unambiguous intent of the sentencing court. The district court
committed no error in denying Minnis’s motion.
AFFIRMED.
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