           Case: 17-10572   Date Filed: 10/31/2017   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10572
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:07-cr-60061-JAL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

EMMANUEL AMBROSIO,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 31, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-10572      Date Filed: 10/31/2017   Page: 2 of 4


      Emmanuel Ambrosio appeals the grant of the government’s motion under

Federal Rule of Criminal Procedure 36 to amend his judgment more than nine

years after judgment was entered, and changing the description of one of the

offenses — from carrying a firearm during and in relation to a crime of violence,

18 U.S.C. § 924(c), to carrying a firearm during and in relation to a drug

trafficking crime. He argues that the district court erred because the amendment

prejudiced him by foreclosing his argument for post-conviction relief.

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

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

      Rule 36 provides that a 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 may not be

used to make a substantive correction or alteration to a criminal sentence. Portillo,

363 F.3d at 1164. A Rule 36 amendment also may not “prejudice the defendant in

any reversible way.” United States v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016).

      When the description of an offense of conviction is incorrect in a written

judgment, a court may amend the description under Rule 36 if the correct offense

of conviction is clear from the record. Id. at 1265. In such circumstances, “there

[is] no prejudice in amending the judgment to reflect” the correct offense of

conviction because the defendant is not exposed to a longer prison term as a result


                                           2
              Case: 17-10572     Date Filed: 10/31/2017    Page: 3 of 4


of the amendment. Id. at 1262. This is true even where the amendment would

foreclose the defendant’s challenge to his judgment. See id. at 1260 (noting that

the defendants opposed the government’s Rule 36 motion because the incorrect

version of their judgment would have allowed them to challenge their sentences as

illegal).

       An individual convicted of using or carrying a firearm during and in relation

to any crime of violence or drug trafficking crime is subject to minimum term of

five years’ imprisonment, to run consecutively to any other term of imprisonment.

18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D).

       Here, the district court did not err when it amended Ambrosio’s judgment

pursuant to Rule 36. First, the record makes clear that he was convicted of

carrying a firearm during and in relation to a drug trafficking crime, not a crime of

violence. The plea agreement indicated that a drug trafficking crime was the

predicate offense, and the district court repeated that statement at the beginning of

his plea colloquy. Moreover, the other offense to which he pleaded, Count 3, was

a drug trafficking crime. His PSI also stated that the predicate offense was a drug

trafficking crime, and he did not object to that finding. Second, the mistake in his

original judgment was merely clerical, and the amendment did not substantively

alter his total sentence or prejudice him. Amending his judgment merely took

away his ability to rely on an erroneous fact in a post-conviction motion to vacate.


                                          3
              Case: 17-10572    Date Filed: 10/31/2017   Page: 4 of 4


It did not expose him to the mandatory consecutive term of imprisonment — his

conviction for carrying a firearm during a drug trafficking crime did. Accordingly,

we affirm.

      AFFIRMED.




                                         4
