United States v. Douglas A. Jarvis , 335 F. App'x 845 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2009
No. 08-16091 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 90-06099-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS A. JARVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 19, 2009)
Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
Douglas A. Jarvis, a federal prisoner proceeding pro se, appeals the district
court’s order denying his motion requesting the court to amend his judgment of
conviction. For the reasons set forth below, we affirm.
I.
According to the 1991 judgment of conviction, a jury found Jarvis guilty of
“conspiracy to possess with intent to distribute cocaine,” in violation of 21 U.S.C.
§ 846. The judgment did not mention 18 U.S.C. § 2 or anything about aiding and
abetting. On direct appeal, we affirmed Jarvis’s conviction without opinion.
United States v. Jarvis, 978 F.2d 720 (11th Cir. 1992). Between 1995 and 2006,
Jarvis unsuccessfully filed numerous post-conviction motions for relief.
On June 25, 2008, Jarvis filed the instant pro se “Motion for a Judicial
Request.” Jarvis requested the district court to amend the judgment of conviction
to reflect his actual offense of conviction, which he asserted was “aiding and
abetting” the cocaine conspiracy, in violation of 18 U.S.C. § 2. Jarvis
acknowledged that the requested correction would not affect his sentence, but he
stated, without explanation, that it “would [a]ffect the way he is treated by the
Bureau of Prisons.” In his prayer for relief, Jarvis requested, inter alia, the district
court to “correct the record pursuant to Fed.R.Civ.P. 60(b)(6)” or “correct the
record pursuant to Fed.R.Crim.P. 36.”
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The district court denied Jarvis’s request, concluding that aiding and abetting
was not a separate and distinct criminal offense under 18 U.S.C. § 2. Instead, the
court explained that § 2 “merely makes someone who aids and abets another in
committing a crime criminally responsible for the underlying crime to the same
extent as the person who he assisted.” Thus, the court found that, even if Jarvis
was convicted under an aiding and abetting theory, he was still guilty of the crime
of conspiracy to possess with the intent to distribute cocaine, as set forth in the
judgment of conviction.
II.
As an initial matter, we construe Jarvis’s motion as one brought pursuant to
Fed.R.Crim.P. 36, which authorizes the district court to “correct a clerical error in a
judgment” or “an error in the record arising from oversight or omission.”
Fed.R.Crim.P. 36. Although Jarvis also cited Fed.R.Civ.P. 60(b), his motion
requested only that the court amend the judgment of conviction entered in his
criminal case; it did not seek relief from any judgment or order entered in a civil
action. See United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998)
(holding that “Rule 60(b) simply does not provide for relief from judgment in a
criminal case”). We review de novo the district court’s interpretation of Rule 36.
See United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004).
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III.
In this case, the district court correctly concluded that aiding and abetting
under 18 U.S.C. § 2 “does not represent a distinct offense, but rather simply
codifies an alternate theory of liability inherent in every count, whether explicit or
implicit . . . .” United States v. Hassoun, 476 F.3d 1181, 1183 n.2 (11th Cir. 2007)
(quotation omitted); see 18 U.S.C. § 2(a) (“Whoever commits an offense against
the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.”). In other words, “the rule is
well-established . . . that one who has been indicted as a principal may be
convicted on evidence showing that he merely aided and abetted the commission of
the offense.” Hassoun, 476 F.3d at 1183 n.2 (quotation omitted). Thus, even if the
jury convicted Jarvis of conspiracy to possess with intent to distribute cocaine
under an aiding and abetting theory, his offense of conviction would remain the
same. Accordingly, we affirm the denial of Jarvis’s motion.
AFFIRMED.
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