Frederick Johnson v. United States , 216 F. App'x 926 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 8, 2007
No. 06-10514
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 05-80677-CV-KLR & 04-08007-CR-KLR
FREDERICK JOHNSON,
Petitioner-Appellee,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 8, 2007)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
The Government appeals the district court's order vacating defendant
Frederick Johnson’s original 188-month sentence and imposing the alternative
120-month sentence announced at the sentencing hearing. We affirm.
Johnson pled guilty to one count of possession with the intent to distribute
at least five grams of crack cocaine, in violation of 21 U.S.C. § 841. The district
court sentenced Johnson to 188 months’ imprisonment under the then-mandatory
federal Sentencing Guidelines. The court, aware that United States v. Booker was
pending before the Supreme Court, also announced an alternative sentence (as was
its custom) of 120 months’ imprisonment in the event the Sentencing Guidelines
were not mandatory. The Government did not raise any objections to the
alternative sentence. Johnson’s judgment and commitment order (J&C order)
reflected only the 188-month sentence.
After the Supreme Court issued United States v. Booker, 125 S. Ct. 738
(2005), Johnson moved the district court to vacate the original sentence and
impose the alternative sentence. The district court granted Johnson’s motion,
relying on Federal Rule of Criminal Procedure 36.
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.”
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Fed. R. Crim. P. 36. Rule 36 cannot be used to make substantive alterations to a
sentence. United States v. Pease, 331 F.3d 809, 816 (11th Cir. 2003). However, a
district court may use Rule 36 at any time to correct “clerical” errors in the written
judgment, for example, to ensure that the judgment conforms to the oral sentence.
United States v. Portillo, 363 F.3d 1161, 1164-65 (11th Cir. 2004) (“Where a
sentence that is pronounced orally and unambiguously conflicts with the written
order of judgment, the oral pronouncement controls.”).
Under the unique facts of the instant case, the district court did not err in
relying on Rule 36 to impose the alternative 120-month sentence. At sentencing,
the district court clearly announced an alternative sentence to which the
Government raised no objection. Johnson’s J&C order contained a clerical error
insofar as it did not reflect the 120-month alternative sentence. The district court
properly relied on Rule 36 to correct the clerical error and impose the alternative
sentence after Booker was issued. Accordingly, we affirm the district court’s
imposition of the alternative sentence of 120 months’ imprisonment.
AFFIRMED.
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