United States v. Diaz

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 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 19th 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.
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 four-
year term.
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