United States v. Emmanuel Ambrosio , 699 F. App'x 921 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10572
Non-Argument Calendar
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D.C. Docket No. 0:07-cr-60061-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMANUEL AMBROSIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 31, 2017)
Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Emmanuel Ambrosio appeals the grant of the government’s motion under
Federal Rule of Criminal Procedure 36 to amend his judgment more than nine
years after judgment was entered, and changing the description of one of the
offenses — from carrying a firearm during and in relation to a crime of violence,
18 U.S.C. § 924(c), to carrying a firearm during and in relation to a drug
trafficking crime. He argues that the district court erred because the amendment
prejudiced him by foreclosing his argument for post-conviction relief.
We review de novo the district court’s application of Rule 36. United States
v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004).
Rule 36 provides that a 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. However, Rule 36 may not be
used to make a substantive correction or alteration to a criminal sentence. Portillo,
363 F.3d at 1164. A Rule 36 amendment also may not “prejudice the defendant in
any reversible way.” United States v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016).
When the description of an offense of conviction is incorrect in a written
judgment, a court may amend the description under Rule 36 if the correct offense
of conviction is clear from the record. Id. at 1265. In such circumstances, “there
[is] no prejudice in amending the judgment to reflect” the correct offense of
conviction because the defendant is not exposed to a longer prison term as a result
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of the amendment. Id. at 1262. This is true even where the amendment would
foreclose the defendant’s challenge to his judgment. See id. at 1260 (noting that
the defendants opposed the government’s Rule 36 motion because the incorrect
version of their judgment would have allowed them to challenge their sentences as
illegal).
An individual convicted of using or carrying a firearm during and in relation
to any crime of violence or drug trafficking crime is subject to minimum term of
five years’ imprisonment, to run consecutively to any other term of imprisonment.
18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D).
Here, the district court did not err when it amended Ambrosio’s judgment
pursuant to Rule 36. First, the record makes clear that he was convicted of
carrying a firearm during and in relation to a drug trafficking crime, not a crime of
violence. The plea agreement indicated that a drug trafficking crime was the
predicate offense, and the district court repeated that statement at the beginning of
his plea colloquy. Moreover, the other offense to which he pleaded, Count 3, was
a drug trafficking crime. His PSI also stated that the predicate offense was a drug
trafficking crime, and he did not object to that finding. Second, the mistake in his
original judgment was merely clerical, and the amendment did not substantively
alter his total sentence or prejudice him. Amending his judgment merely took
away his ability to rely on an erroneous fact in a post-conviction motion to vacate.
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It did not expose him to the mandatory consecutive term of imprisonment — his
conviction for carrying a firearm during a drug trafficking crime did. Accordingly,
we affirm.
AFFIRMED.
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