           Case: 13-13750   Date Filed: 07/21/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13750
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:01-cr-00892-CMA-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MARK CARRIE,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 21, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Mark Carrie, a federal prisoner proceeding pro se, appeals the district court’s

denial of his motion to correct his judgment under Fed.R.Crim.P. 36. He argues

that his written judgment, originally entered in 2004, conflicts with the oral

pronouncement of his total sentence, and should be corrected to reflect a

modification and sentencing credit under U.S.S.G. § 5G1.3(b). In the alternative,

he argues that because he pled guilty based, in part, on a promise that he would

receive the sentencing credit he now seeks, he is entitled to specific performance.

      We review de novo a district court’s application of Rule 36. 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.” United States v. Pease, 331 F.3d 809, 816 (11th

Cir. 2003). Rule 36 is the appropriate remedy to correct clerical errors that cause

the written judgment to differ from the oral pronouncement of sentence. See

United States v. Bates, 213 F.3d 1336, 1340 (11th Cir. 2000) (remanding to correct

written judgment stating supervised release was three years, when the court had

unambiguously pronounced it to be five years).

      The Former Fifth Circuit addressed situations similar to the one presented

here, albeit under a predecessor version of the rule. In Fitzgerald v. United States,


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296 F.2d 37 (5th Cir. 1961), the appellant was given a sentence of one year and

one day in Georgia, which was to run consecutive to a sentence he was already

serving in North Carolina. Fitzgerald, 296 F.2d at 37. He was then given another

sentence of one year and one day, this time in Florida, and it was set to “run

consecutively with sentence or sentences said defendant is now serving.” Id. at 37-

38. After being told he would have to serve the Georgia and Florida sentences

consecutively, the appellant filed a petition contending that the two sentences

should run concurrently. Id. at 38. The district court judge who imposed the

Florida sentence heard the petition, dismissed it, and amended the commitment

order so that it read that the sentence was to “run consecutively with the sentence

or sentences defendant is now serving or to be served pursuant to any and all

previously imposed sentences.” Id. On appeal, the Fifth Circuit determined that

Rule 36 authorized the district court to correct the commitment order to resolve the

ambiguity, especially because the amendment did not alter the sentence but

“merely rendered its original intention beyond dispute.” Id. at 38-39.

      More recently, in United States v. Whittington, 918 F.2d 149 (11th Cir.

1990), we dealt with an appellant whose plea bargain agreement provided that he

would serve exactly five years in prison regardless of Parole Commission

guidelines. Whittington, 918 F.2d at 150. The district court then sentenced the

appellant to a maximum of 60 months’ imprisonment. Id. When the Parole


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Commission scheduled the appellant’s release after just three years served, the

government filed an emergency motion to correct the district court’s order, and the

district court ordered that the sentence be corrected to read that the appellant

should be sentenced to a minimum of 60 months and a maximum of 60 months.

Id.(emphasis added). We held that the district court erred by using Rule 36 to

fundamentally alter the defendant’s sentence from three to five years’

imprisonment in an attempt to conform the sentence to the intention of the parties

as reflected in the plea agreement. Id. at 151.

      At the time of Carrie’s sentencing in 2004, commentary to § 5G1.3 stated

that if subsection (b) applied, and the court adjusted the sentence for time served,

the court should note §5G1.3(b) on the order, along with: (i) the amount of time the

sentence was being adjusted; (ii) the undischarged term for which the adjustment

was given; and (iii) the fact that the sentence imposed is a sentence reduction for a

period of imprisonment that will not be credited by the BOP. U.S.S.G. § 5G1.3,

comment. (n.2(A)(C)) (2003).

      The district court did not err in denying Carrie’s motion, because the relief

sought was beyond the scope of Rule 36. Carrie asked the district court at his

sentencing in 2004 to follow the commentary to § 5G1.3 by mentioning that

provision and subtracting the number of months it intended to credit him from his

total sentence. The district court declined to do so, stating that it would make its


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intentions known through stating that credit should be given from February 21,

2001. Thus, this case is factually distinguishable from Fitzgerald, because the

district court there was not presented at sentencing with the argument that

ambiguity could arise from the wording of its order, so the ambiguity could have

been construed as a clerical error. See Fitzgerald, 296 F.2d at 37. Here, however,

the district court made clear that it did not intend to subtract the credited months

from Carrie’s total sentence or mention § 5G1.3 in its written judgment, so the

omission of those things from the written judgment could not be considered a

“clerical error,” and therefore could not be remedied by Rule 36. Fed.R.Crim.P.

36. The district court here was presented with a situation more akin to

Whittington, where Rule 36 could not be used as a means to alter a sentence’s

length, even after it became clear that the court’s intentions would not be followed.

See Whittington, 918 F.2d at 151. In sum, the district court did not err by refusing

to mention § 5G1.3 or subtract months from a total sentence after the fact, because

doing so would have been a substantive alteration of a sentence, which is not Rule

36’s purpose. Pease, 331 F.3d at 816.

       Additionally, because Carrie did not raise his specific performance claim

before the district court in the present case, and Rule 36 did not authorize the

district court to entertain such a claim in any event, the district did not err, or

plainly err, in that respect.


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      Because Rule 36 could not provide the relief sought, the court did not err in

denying Carrie’s motion. Accordingly, we affirm.

      AFFIRMED.




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