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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15344
Non-Argument Calendar
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D.C. Docket No. 8:07-cr-00212-JDW-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC KELVIN ALLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 5, 2018)
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Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
Isaac Kelvin Allen, proceeding pro se, appeals the district court’s order
granting in part and denying in part 1 his motion requesting correction of clerical
errors in his forfeiture money judgment and Presentence Investigation Report (PSI)
under Federal Rule of Criminal Procedure 36. Allen contends the district court
erred in: (1) not correcting the PSI’s misclassification of his felony convictions;
(2) failing to correct the probation officer’s $500 understatement of the loss
amount attributed to him for one of his identity theft victims; and (3) holding him
jointly and severally liable for the loss amount with his common-law wife and the
mother of his child, Tara Pasco. Allen also asserts the forfeiture ordered at his
2008 sentencing exceeded the maximum amount allowable by statute and that his
amended forfeiture money judgment does not reflect that he was held jointly and
severally liable with Pasco for restitution. After review,2 we affirm. 3
1
The district court issued an amended forfeiture money judgment reflecting that Allen
pled guilty to making false statements. This partial grant of the motion is not at issue on appeal.
2
We review de novo the district court’s application of Federal Rule of Criminal
Procedure 36 to correct clerical errors. United States v. Portillo,
363 F.3d 1161, 1164 (11th Cir.
2004).
3
Allen has also filed three motions before this Court. First, Allen moves under
28 U.S.C.
§ 2106 for this Court to remand his restitution judgment to the district court for the correction of
several sentencing errors. This motion is denied as moot because the relief requested therein
mirrors the relief requested in this appeal. Second, Allen moves to be absolved of his collateral-
attack waiver. This motion, too, is denied as moot because this Court has resolved Allen’s
appeal without relying upon his collateral-attack waiver. Finally, Allen moves for this Court to
2
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Federal Rule of Criminal Procedure 36 provides “[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. Importantly, Rule 36 may not
be used to make a substantive alteration to a criminal sentence. United States v.
Davis,
841 F.3d 1253, 1261 (11th Cir. 2016), cert. denied,
137 S. Ct. 2318 (2017).
It applies only to clerical mistakes. United States v. Portillo,
363 F.3d 1161, 1164
(11th Cir. 2004) (concluding that the district court properly applied Rule 36 to
correct a clerical error in the judgment so that the judgment corresponded with the
oral pronouncement of the sentence); United States v. Reeves,
742 F.3d 487, 507
n.12 (11th Cir. 2014) (describing the type of clerical errors curable under Rule 36
as “scrivener’s errors”). We have, for example, remanded cases to the district
court to correct clerical errors where the judgment listed the correct crime, but
listed the wrong corresponding count in the indictment. United States v. Massey,
443 F.3d 814, 822 (11th Cir. 2006).
The question is whether the purported errors Allen identifies are clerical or
substantive. We address each in turn. First, Allen asserts the probation officer
misclassified his aggravated identity theft convictions as Class D felonies, as
take judicial notice of out-of-circuit judicial opinions. This motion is denied because this Court
can consider out-of-circuit judicial opinions without taking judicial notice of them.
3
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opposed to Class E felonies. This was not a clerical error. It does not appear, for
example, that the probation officer mistakenly transposed the letter “D” for “E”
when drafting the PSI. Rather, the probation officer analyzed Allen’s aggravated
identity theft convictions under the wrong statute. Thus, the error is substantive
and cannot be corrected under Rule 36. See Davis, 841 F.3d at 1261.
Second, Allen contends the district court erred by failing to correct the
probation officer’s $500 understatement of the loss amount attributed to him for
one of his identity theft victims. We need not decide whether this error was
clerical or substantive because it was harmless. The discrepancy Allen identifies
would not have impacted his guideline range and it certainly did not increase the
amount of restitution he owed.
Allen also asserts that the judgment incorrectly states that he is to be held
jointly and severally liable for the loss amount with his common-law wife and the
mother of his child, Tara Pasco. We disagree. The language in the judgment
accurately reflects the district court’s statement at sentencing that Allen would be
held jointly and severally liable with Pasco. Thus, there is no clerical error. To the
extent Allen is challenging the propriety of holding him jointly and severally liable
4
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with Pasco, that is a substantive challenge to his sentence which falls outside the
scope of Rule 36. 4
Finally, Allen asserts the forfeiture ordered at his 2008 sentencing exceeded
the maximum amount allowable by statute. In Portillo, we rejected a defendant’s
attempt to challenge his sentence in an appeal of a Rule 36 order correcting two
clerical errors regarding his restitution obligations in the judgment.
363 F.3d at
1164–66. Portillo’s conviction and sentence became final years before he filed the
appeal, and we stated that the corrected judgment did not alter his sentence in any
way. Portillo,
363 F.3d at 1165–66. Portillo could not base his appeal on the
correction of the clerical errors because the time allowed for raising his substantive
challenges “ha[d] long since expired under” Federal Rule of Appellate Procedure
4(b)(1)(A).
Id. at 1166. Similarly, here, the amendment to the forfeiture money
judgment did not substantively alter Allen’s sentence in any way. Therefore,
Allen’s substantive challenge to his 2008 sentence is improper.
AFFIRMED.
4
Relatedly, Allen’s argument that the amended forfeiture money judgment erroneously
failed to state that Tara Pasco was being held jointly and severally liable with him is without
merit. Both his conviction and sentence reflect that Allen’s restitution obligation is joint and
several with Pasco.
5
