           Case: 16-17047   Date Filed: 07/07/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17047
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 2:07-cr-14039-KMM-4



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ANNIEL GOMEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                              (July 7, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant Anniel Gomez appeals the district court’s denial of his “Motion

for Proving Official Record and Correcting Clerical Error,” filed pursuant to

Federal Rule of Criminal Procedure 36. After careful review, we affirm.

I.    BACKGROUND

      In 2007, Defendant pled guilty pursuant to a written plea agreement to

conspiring to maintain a place to manufacture or distribute marijuana, in violation

of 21 U.S.C. §§ 846 and 856(a)(1), and conspiring to manufacture, distribute, and

dispense 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. At the change-of-plea hearing, the Government explained that if the case

had gone to trial, the Government would have proved that Defendant and his co-

conspirators conspired to grow and harvest marijuana inside several homes

throughout Florida. The Government also stated that it would have established that

during the conspiracy, Defendant got into an altercation with his uncle, Jesus

Miranda, which ultimately led to Defendant stabbing Miranda to death. Defendant

agreed to the factual basis for the plea, and acknowledged that Miranda’s death

could affect his guidelines calculations.

      In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report (“PSR”). The probation officer grouped both counts together

and applied a base offense level of 38, pursuant to U.S.S.G. § 2A1.2, because the

offense involved the second-degree murder of a victim. With a three-level


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reduction for acceptance of responsibility, the total offense level was 35. Based on

a total offense level of 35 and a criminal history category of I, the guideline range

was 168 to 210 months’ imprisonment. Defendant objected to the base offense

level, arguing that the conduct related to Miranda’s death constituted voluntary

manslaughter, not second-degree murder.

       At sentencing, Defendant reiterated his objection to the base offense level.

The Government called two witnesses, including Defendant’s brother, who

testified that Defendant and Miranda got into a fist-fight over money, Miranda

grabbed Defendant by the neck, and while Miranda was choking him, Defendant

stabbed Miranda twice in the back. Miranda fell to the floor and asked Defendant,

“[W]hy are you doing this to me.” Defendant told Miranda he “deserve[d] it,” and

then stabbed Miranda in the chest. The Government also called Defendant’s

brother-in-law, who testified that Defendant had told him that he killed Miranda.

Finally, Defendant testified on his own behalf, and stated that he was not involved

in his uncle’s death. The district court found that Defendant’s conduct constituted

second-degree murder and ultimately sentenced him to 365 months’

imprisonment. 1



1
  Based on Defendant’s testimony, which contradicted the factual basis for the plea, the district
court determined that he was not entitled to a reduction for acceptance of responsibility and that
he also warranted an upward adjustment for obstruction of justice. As a result, the district court
calculated an amended guideline range of 292 to 365 months’ imprisonment.

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       We affirmed on appeal, concluding in relevant part that the district court did

not clearly err by finding that Defendant’s conduct constituted second-degree

murder. See United States v. Gomez, 334 Fed. App’x 242, 247 (11th Cir. 2009).

Defendant later filed an unsuccessful motion to vacate pursuant to 28 U.S.C.

§ 2255.

       In 2016, Defendant filed the present “Motion for Proving Official Record

and Correcting Clerical Record,” pursuant to Rule 36. 2 Defendant explained that

he had pled guilty in 2007 to conspiring to maintain a place to manufacture

marijuana and conspiring to manufacture and distribute 100 or more marijuana

plants. However, he had recently filed a motion to reduce his sentence pursuant to

18 U.S.C. § 3582(c)(2) and Amendment 782 to the Sentencing Guidelines, but that

motion was denied on the ground that Defendant was sentenced based on murder,

not drugs. He argued that it was unconstitutional that he was sentenced for murder

and that the record needed to be corrected.

       The district court denied Defendant’s motion and this appeal followed.




2
  In his motion, Defendant also referenced Federal Rule of Criminal Procedure 27, which
provides that “[a] party may prove an official record, an entry in such a record, or the lack of a
record or entry in the same manner as in a civil action.” See Fed. R. Crim. P. 27. On appeal,
Defendant makes only a passing reference to Rule 27 by stating that he “is certain that the
Government concedes that the subject documents are in fact authentic, and we can move on to
the clerical error.” He has therefore abandoned any argument pertaining to Rule 27. See
Sapuppo v. Allstate Fla. Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (explaining that a party
abandons an argument on appeal by only making a passing reference to the claim).
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II.   DISCUSSION

      Defendant argues that the district court erred by denying his motion to

correct the record under Rule 36 because the PSR incorrectly included his uncle’s

death in his guidelines calculations.

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

Davis, 841 F.3d 1253, 1261 (11th Cir. 2016). Rule 36 provides that “[a]fter giving

any notice it considers appropriate, 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. “It is clear in this

Circuit that Rule 36 may not be used to make a substantive alteration to a criminal

sentence.” Davis, 841 F.3d at 1261 (quotations omitted). Indeed, Rule 36 is meant

to correct errors that are “minor and mechanical in nature.” United States v.

Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004).

      Here, the district court did not err by denying Defendant’s Rule 36 motion

because he requested a substantive, not clerical, change to his PSR. At sentencing,

Defendant objected to the PSR’s assignment of a base offense level of 38 under

U.S.S.G. § 2A1.2—the provision governing second-degree murder. The district

court overruled Defendant’s objection and calculated his guideline range pursuant

to § 2A1.2. Defendant’s request for correction of his PSR pertaining to the alleged

erroneous application of § 2A1.2 in calculating his guideline range is not “minor


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and mechanical in nature,” as it would substantively alter his guideline range.

Portillo, 363 F.3d at 1165. Because Rule 36 cannot be used to make a substantive

change, the district court properly denied Defendant’s motion.

      AFFIRMED.




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