            Case: 18-13352    Date Filed: 09/10/2019   Page: 1 of 3


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13352
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-20457-KMW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JEAN POMPEE,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 10, 2019)

Before TJOFLAT, WILSON and HULL, Circuit Judges.

PER CURIAM:
                Case: 18-13352    Date Filed: 09/10/2019    Page: 2 of 3


      Jean Pompee, serving consecutive sentences of 51 months---27 months for

possessing 15 or more unauthorized access devices, in violation of 18 U.S.C. §

1029(a)(3), and 24 consecutive months for aggravated identity theft, in violation of

18 U.S.C. § 1028(a)(1)---appeals the district court’s order denying his “Motion to

Award Credit for Time Served.” He argues that the court’s judgment is silent on

the issue of time served and that contrary to the court’s position, it had the

authority under Federal Rule of Criminal Procedure 36 to clarify whether it

intended his 51 months total sentence to run concurrently or consecutively to his

yet-to-be-imposed state sentence for violating his probation. We affirm the district

court’s order because the court lacked subject matter jurisdiction to grant Pompee

the relief he seeks.

      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. Rule 36 cannot be used to make

substantive alterations to a criminal sentence. United States v. Davis, 841 F.3d

1253, 1261 (11th Cir. 2016). What Pompee seeks is not the correction of a clerical

error, but the modification of his sentences, a service Rule 36 cannot provide. In

sum, the district court lacked the authority under Rule 36 to modify the judgment

in this case to reflect that Pompee’s federal and state sentences should run

concurrently.


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SO ORDERED.




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