           Case: 17-10085   Date Filed: 04/10/2018   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10085
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:04-cr-20159-FAM-6



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JULIO ACUNA,
a.k.a. Chino,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 10, 2018)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-10085      Date Filed: 04/10/2018   Page: 2 of 3


      Julio Acuna appeals the district court’s denial of his motion for clarification

of his offense of conviction, which is construed as a motion to correct a clerical

error under Federal Rule of Criminal Procedure 36. On appeal, he argues that the

district court erred in refusing to correct a discrepancy between the judgment,

which indicated that he had been convicted under 18 U.S.C. § 1962(d), and

notations on the district court docket sheet, which indicated that his § 1962(d)

charge had been dismissed and he had been convicted under 18 U.S.C. § 1963

instead.

      We review the district court’s application of Rule 36 de novo. United States

v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016), cert. denied, 137 S. Ct. 2318

(2017).

      Rule 36 provides that “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. This rule applies only to

clerical mistakes, and cannot be used to make substantive changes to a criminal

sentence. 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). When there is a clerical error in the judgment, we




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may remand with instructions to correct the error. United States v. James, 642

F.3d 1333, 1343 (11th Cir. 2011).

      Section 1962, titled “Prohibited Activities,” describes racketeering conduct

that is unlawful. See 18 U.S.C. § 1962. Section 1962(d) specifically prohibits

conspiring to violate any of the provisions contained in the preceding subsections.

18 U.S.C. § 1962(d). Section 1963, called “Criminal Penalties,” establishes the

penalties for violating § 1962, including imprisonment and forfeiture. 18 U.S.C.

§1963. The section provides that an individual who violates § 1962 shall be

imprisoned for life if the violation is based on a racketeering activity for which the

maximum penalty includes life imprisonment. 18 U.S.C. § 1963(a).

      Here, it is clear that Acuna was convicted under § 1962(d), and his judgment

properly reflects that. The notations on the district court docket sheet indicating

that the § 1962(d) charge was dismissed and that Acuna was convicted under

§ 1963, therefore, are erroneous. Though such error is the kind of clerical mistake

subject to correction under Rule 36, the error is harmless and has not resulted in

any prejudice to Acuna, and the discretionary language of the Rule directs that the

district court is under no obligation to correct it.

      AFFIRMED.




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