            Case: 15-11863   Date Filed: 12/01/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11863
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:07-cr-60234-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ADONAY ORLANDO CORDON,

                                                          Defendant-Appellant.

                       ________________________

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

                             (December 1, 2015)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Adonay Orlando Cordon appeals denial of his pro se motion to correct a

clerical error in his sentencing judgment for illegal reentry after deportation, in

violation of 8 U.S.C. § 1326(a), (b)(2). We affirm.


                                I. BACKGROUND

      Cordon, a citizen of Guatemala, was arrested in June 2007 by state law-

enforcement officers for aggravated battery and placed in state custody. He pled

guilty in state court to the aggravated-battery charge and was sentenced in 2008 to

78.2 months of imprisonment. His projected release date for the state crime was

September 2013.

      Investigation of federal databases conducted at the time of his arrest revealed

Cordon was an alien, who had been removed from the United States in 2004.

Consequently, a federal grand jury indicted him on one count of unlawfully

reentering the United States after having been removed. Cordon pled guilty.

      At his federal sentencing on July 24, 2009, Cordon personally requested the

district judge to run his federal sentence concurrently with his state sentence. After

stating he had considered the 18 U.S.C. § 3553(a) factors, the judge imposed a

sentence of 70 months of imprisonment. The judge did not specify whether

Cordon’s federal sentence would run concurrently with or consecutively to his

state sentence. When Cordon’s counsel asked for clarification regarding the date

from which Cordon’s sentence would run, the judge responded: “The sentence

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starts to run from today’s date.” R at 92. The written judgment and commitment

order was silent concerning whether Cordon’s federal sentence was to run

concurrently with or consecutively to his state sentence.

      Cordon did not appeal his conviction or sentence. In April 2015, Cordon

filed a pro se motion to correct his sentence under Federal Rule of

Criminal Procedure 36. Cordon asserted the district judge had failed to state

whether his federal sentence was to run concurrently with or consecutively to his

state sentence. Because his judgment and commitment order was silent in that

regard, the Bureau of Prisons had run the federal sentence consecutively to his

state-imprisonment term. Cordon requested the judge to modify the judgment and

commitment order to state his sentences were to run concurrently, and he would

receive credit for time served from the date of his arrest.

      In denying Cordon’s motion, the district judge stated: “This Court finds no

clerical error addressed by Rule 36 of the Federal Rules of Criminal Procedure, nor

does the Court find that the sentence was illegal.” R at 105. On April 28, 2015,

Cordon filed both a “Motion for Reconsideration Request for Clarification of

Sentence Whether the Sentence is Concurrent or Consecutive” (“motion for

clarification”) and noticed appeal of denial of his Rule 36 motion. R at 106. The

judge granted Cordon’s motion for clarification and stated: “Since the Court did

not order its sentence to run concurrently with Mr. Cordon’s state sentence, 18


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U.S.C. § 3584(a) mandates that the sentence be run consecutively to the state

sentence.” R at 114.

      Cordon sought reconsideration of the clarification order and argued the

judge had erred in stating the sentences were to be served consecutively, because

he had not stated his reasons for imposing the consecutive sentences and had not

considered the 18 U.S.C. § 3553(a) factors in his clarifying order. Cordon

requested that the district judge correct his judgment of conviction to show his

federal sentence ran partially concurrently with his state sentence, beginning from

July 24, 2009. The district judge denied Cordon’s motion; Cordon did not file a

notice of appeal from that order.

                                  II. DISCUSSION

      We review de novo a district judge’s application of Federal Rule of Criminal

Procedure 36. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004).

After giving notice, Rule 36 provides a district judge, “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 may

not be used to make substantive changes to a defendant’s sentence; it may be used

to correct only mistakes that are minor or mechanical in nature. Portillo, 363 F.3d

at 1164-65. A judge may, however, correct errors in the written judgment to

ensure that the judgment accurately reflects the oral sentence. Id. at 1164. “Where


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a sentence is pronounced orally and unambiguously conflicts with the written order

of judgment, the oral pronouncement controls.” Id. at 1165.

      Rule 3 of the Federal Rules of Appellate Procedure provides a notice of

appeal must “designate the judgment, order, or part thereof being appealed.”

Fed. R. App. P. 3(c)(1)(B). Although courts liberally construe the requirements of

Rule 3, those requirements are jurisdictional and must be satisfied as a prerequisite

to appellate review. Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 681-82,

116 L. Ed. 2d 678 (1992). We have exercised jurisdiction to review the denial of a

post-appeal motion despite the defendant’s failure to file a separate notice of

appeal from the denial of that motion. United States v. Brester, 786 F.3d 1335,

1338 (11th Cir. 2015). Recognizing that “it is clearly the better practice to perfect

a separate appeal from the denial of a [post-appeal] motion,” we nevertheless

concluded that, where the government was not prejudiced and the parties briefed

the issue on appeal, we had jurisdiction to review the post-appeal motion. Id. at

1338-39; see also United States v. Wilson, 894 F.2d 1245, 1252 (11th Cir. 1990)

(“Without a showing of prejudice against the government, it would be

unreasonable and unfair to refuse to consider an issue which was thoroughly

briefed and clearly recognized as an issue by both parties.”) (internal quotation

marks and alterations omitted)).




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      We conclude we do not have jurisdiction to review the district judge’s

decisions on Cordon’s post-appeal motions for clarification and reconsideration,

because he did not perfect an appeal from those orders. See Fed. R. App. P.

3(c)(1)(B); Smith, 502 U.S. at 248, 112 S. Ct. at 681-82. Unlike Brester and

Wilson, both parties have not “thoroughly briefed and clearly recognized” the issue

for appellate review, because the government does not mention Cordon’s post-

appeal motions in the fact section of its brief or explicitly address those motions in

its argument section. Brester, 786 F.3d at 1338-39; Wilson, 894 F.2d at 1252.

Therefore, we address only the denial of Cordon’s Rule 36 motion.

      The district judge did not err in denying Cordon’s Rule 36 motion to correct

his sentence. First, the error Cordon sought to correct was not truly a “clerical

error” within the meaning of Rule 36, since the oral pronouncement was not

unambiguous on the issue of whether Cordon’s federal and state sentences would

run concurrently or consecutively. Portillo, 363 F.3d at 1164-65. At sentencing,

the judge never explicitly ruled on Cordon’s request that his federal sentence run

concurrently with his undischarged state sentence. Moreover, although the judge’s

statement that the federal sentence would run from the date of sentencing suggests

the federal and state sentences were to run at least partially concurrently, it is not

unambiguous. Consequently, the fact that the written judgment is silent regarding

whether the federal sentence runs concurrently or consecutively is not clearly in


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conflict with the district judge’s oral pronouncement. See Portillo, 363 F.3d at

1165. Likewise, Cordon’s argument that the district judge erred in failing to

consider the 18 U.S.C. § 3553(a) factors at sentencing is not cognizable under Rule

36, because it is an argument concerning the substantive reasonableness of his

sentence, rather than a clerical error. See id. at 1164. The district judge lacked

authority under Rule 36 to make the correction Cordon sought and did not err in

denying his motion. See Fed. R. Crim. P. 36; Portillo, 363 F.3d at 1164-65.

      AFFIRMED.




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