                                                                   [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                No. 11-11466                          MAY 17, 2012
                            Non-Argument Calendar                      JOHN LEY
                          ________________________                      CLERK


                      D.C. Docket No. 3:96-cr-00008-HL-3

UNITED STATES OF AMERICA,

                                   llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                       versus

LUCIOUS BOSWELL,

                                 lllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                         ________________________

                                 (May 17, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Lucious Boswell, a federal prisoner convicted on one count of conspiracy to

possess with intent to distribute cocaine base and two counts of aiding and
abetting the possession with intent to distribute cocaine base, appeals the denial of

his Fed.R.Crim.P. 36 motion to correct clerical errors in his judgment. On appeal,

Boswell argues that the district court erred in denying the two claims presented by

his motion: (1) that his written judgment of sentence must be altered, as it

sentenced him to life and 2 concurrent 40-year terms of imprisonment, whereas the

court’s oral pronouncement of sentence was for a single life term; and (2) that in

signing the written order outside of his presence, the district court denied him his

rights to be present and to allocute at sentencing. We conclude that the district

court properly denied the motion and accordingly we affirm its judgment.1

                                                I.

       We review de novo the district court’s application of Rule 36 to correct its

judgment at sentencing. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir.

2004). 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. However, Rule 36

“cannot be used . . . to make a substantive alteration to a criminal sentence.”

       1
         Although the district court found that the denial of a previous motion to correct
Boswell’s sentence removed its jurisdiction to hear the matter again, under the law of the case
doctrine, such a ruling was erroneous. The previous denial was on jurisdictional grounds, and
only findings of fact and conclusions of law become law of the case. See Wheeler v. City of
Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984). Nevertheless, the district court still
examined both of Boswell’s claims on the merits and properly denied them.

                                                2
United States v. Pease, 331 F.3d 809, 816 (11th Cir. 2003).

      Where the oral pronouncement of sentence and the written order of

judgment conflict, the oral pronouncement controls if unambiguous. United States

v. Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003). However, if the oral sentence

is ambiguous, we may consider extrinsic evidence, including the written

commitment order, to determine the intent of the district court at the time that it

imposed sentence. United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990).

The district court is “master of a sentence,” and its intention controls. Id. at 978.

      A de novo review of the record shows that the district court properly denied

Boswell’s Rule 36 motion. Boswell’s three sentences were not a clerical error or

oversight, and were proper, given that he was convicted on three charges. Thus,

the relief that he requested would constitute a substantive alteration to his criminal

sentence, and Rule 36 is not a proper ground for such relief. Even if relief were

proper, Boswell would not merit an alteration in this case. The court’s oral

pronouncement of his sentence was ambiguous, because the single life sentence

conflicted with his three counts of conviction and the court’s statement that the

Presentence Investigation Report had properly calculated the correct sentencing

ranges, and extrinsic evidence shows that the written judgment reflects the district

court’s true intent and sentencing, and that intent controls.

                                           3
                                          II.

      “Allocution is the right of the defendant to make a final plea on his own

behalf to the sentencer before the imposition of sentence.” United States v.

Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). At sentencing, the district court

must personally address the defendant in order to permit the defendant to speak or

present any information in mitigation of the sentence. Fed.R.Crim.P.

32(i)(4)(A)(ii).

      In the majority of cases, the defendant’s presence is required at sentencing.

Fed.R.Crim.P. 43(a)(3). Rule 43 has been interpreted to require only that “the

defendant be present when sentence is announced by the court.” Henley v.

Heritage, 337 F.2d 847, 848 (5th Cir. 1964). In addition, a defendant has a due

process right “to be present at any stage of the criminal proceeding that is critical

to its outcome if his presence would contribute to the fairness of the procedure.”

Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667 (1987). This is so

that the defendant may have a full opportunity to defend himself, and, thus, the

right to be present is “not guaranteed when presence would be useless, or the

benefit but a shadow. Id. (quotation omitted).

      Here, the district court did not deny Boswell’s rights. The right to be

present at sentencing and to allocute apply at sentencing, and Boswell was present

                                          4
and allowed to allocute at his sentencing hearing. There is no support for the

proposition that either of those rights attaches again at the time when a judge signs

the written judgment. As such, the district court properly denied Boswell’s second

claim. Accordingly, we affirm.

      AFFIRMED.




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