Case: 18-11966 Date Filed: 01/17/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11966
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20807-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO HERNANDEZ,
a.k.a. Peter Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 17, 2019)
Before TJOFLAT, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 18-11966 Date Filed: 01/17/2019 Page: 2 of 3
Pedro Hernandez pled guilty to conspiring to commit wire fraud and health
care fraud. As part of his plea agreement, he agreed to pay $11,525,227 in
restitution, and he agreed to make restitution payments jointly and severally with
his co-conspirators. The District Court sentenced Hernandez to 96 months’
imprisonment and ordered Hernandez to pay $11,527,227 in restitution, jointly and
severally with his co-conspirators. He did not appeal his sentence or move to
vacate it under 28 U.S.C. § 2255.
More than two and a half years later, Hernandez moved the District Court to
correct the presentence investigation report (“PSI”) under Rule 36 of the Federal
Rules of Criminal Procedure. He raised two “clerical” errors. First, he claimed the
amount of restitution computed in the PSI violates the Eighth Amendment, federal
statutory law, and Supreme Court precedent. He argued that he should not have
been ordered to pay restitution because, as a salaried employee of the company that
perpetrated the wire fraud, he did not share in the profits. Second, Hernandez
claimed the mass-marketing enhancement, imposed under U.S.S.G.
§ 2B1.1(b)(2)(A)(ii) was improper. He argued that the enhancement was improper
because the recipients of the mass-marketing campaign were not victims of the
fraud. The District Court denied the motion. Hernandez now appeals pro se.
We review de novo legal issues presented in a Rule 36 motion to correct a
judgment. See United States v. Portillo,
363 F.3d 1161, 1164 (11th Cir. 2004) (per
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curiam). Under Rule 36, “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.”
Id. For example, a district court may use Rule 36 to
correct a clerical error in a judgment to ensure that the judgment matches the oral
sentence.
Id. By contrast, “Rule 36 may not be used ‘to make a substantive
alteration to a criminal sentence.’”
Id. (quoting United States v. Pease,
331 F.3d
809, 816 (11th Cir. 2003)).
Here, Hernandez’s proposed amendments are clearly substantive. He argues
that restitution is inappropriate because he did not share in the company’s profits.
This is a factual dispute, and changing the judgment on this basis would mean
changing the substance of the judgment. He also challenges his Guideline
calculation. This is a legal argument, and changing the judgment on this basis
would also mean changing the substance of the judgment.
Accordingly, we affirm the District Court.
AFFIRMED.
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