United States v. Morris Dewayne Green

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14896 ELEVENTH CIRCUIT
JUNE 1, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 02-00004-CR-WLS-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MORRIS DEWAYNE GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 1, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Morris Dewayne Green appeals from the amended judgment entered in his
criminal case under Federal Rule of Criminal Procedure 36. Green argues that the
district court denied him due process by not providing him with notice that the
amended judgment was being entered and an opportunity to be heard before it was.
He also claims the amendments substantively altered his sentence. Because we
conclude that the amendments to the judgment were merely clerical or intended to
conform the written judgment to the court’s oral sentence, we affirm. But we
nonetheless remand for further corrections because the amended judgment contains
clerical errors as well.
We review a district court’s application of Rule 36 de novo. United States v.
Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). Rule 36 provides that, after giving
any notice it considers appropriate, a district court “may at any time correct a
clerical error in a judgment.” Fed. R. Crim. P. 36. Under the rule, a district court
may amend the written judgment to conform it to the oral pronouncement of
sentence. Portillo, 363 F.3d at 1164–65. Rule 36 may not, however, be used to
make any substantive alteration to a sentence. Id. at 1164.
Most of the amendments Green challenges are merely differences in the
language between the judgment form that was used at the time of Green’s
sentencing and the newer, revised form that was used at the time the district court
issued the amended judgment. For example, the first amendment Green challenges
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clarified that the district court would determine whether Green needed to undergo
periodic drug tests after his release. Whether the phrase “as determined by the
court” was included in the original judgment, the district court had the authority to
determine if Green needed to be drug tested periodically. Green next challenges
the amendment that changes the time in which he must notify the probation office
that his residence or employment has changed from “ten days before the change”
to “at least ten days before the change.” Neither of these differences substantively
changed Green’s sentence.
Green also argues that the district court improperly checked the box
indicating that he was required to pay restitution on the amended judgment where
that box was left unchecked on the original judgment form. But Green does not
dispute that restitution was imposed at his oral sentence. Accordingly, this
correction was the sort of clerical alteration intended to bring the written judgment
into conformity with the oral sentence permitted by Rule 36. Id. at 1165.
Finally, Green argues that these changes constituted a resentencing, which
would have required notice and a right to be heard before the court could impose
sentence. See Fed. R. Crim. P. 43. In Portillo, we concluded that clerical
alterations to a judgment, like those here, are not a resentencing and thus do not
implicate due process concerns or the protections of Federal Rule of Criminal
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Procedure 43. 363 F.3d at 1166. Thus, due process did not require Green’s
presence when the court corrected the judgment. Id. Nor was he entitled to Rule
43’s procedures. Accordingly, we affirm Green’s sentence.
But because the amended judgment contains several new clerical errors
itself, we remand for the limited purpose of correcting those errors. The errors are:
(1) the amended judgment lists 18 U.S.C. § 3664(I) as the statute that governs
Green’s restitution payments, but it should be 18 U.S.C. § 3664(i); (2) the amended
judgment transposed two numbers in the claim number of the restitution payee; (3)
the amended judgment does not reflect that Green’s sentence is consecutive to an
unrelated sentence that Green is currently serving. The first two clerical errors
should be corrected. The last error should also be corrected to bring the written
judgment into accord with Green’s oral sentence.
AFFIRMED WITH LIMITED REMAND.
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