                Case: 11-15465        Date Filed: 11/30/2012   Page: 1 of 12




                                                                    [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 11-15465
                                  Non-Argument Calendar
                                ________________________

                          D.C. Docket No. 1:11-cr-20352-CMA-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllll Plaintiff - Appellee
llllllllllllllllllllllllllllllllCross Appellant,

versus

DAILIN PICO RODRIGUEZ,

lllllllllllllllllllllllllllllllllDefendant - Appellant
lllllllllllllllllllllllllllllllllCross Appellee.

                                ________________________

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

                                     (November 30, 2012)

Before WILSON, MARTIN and FAY, Circuit Judges.
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PER CURIAM:

      Dailin Pico Rodriguez appeals her convictions and concurrent 50-month

sentences for two counts of making false statements in violation of

18 U.S.C. § 1001(a)(2). On appeal, Rodriguez argues that the district court: (1)

erred by failing to sustain her objections to the government’s comments made

during closing argument; (2) improperly applied a three-level sentencing

enhancement when it found her to have substantially interfered with the

administration of justice; and (3) improperly applied a two-level sentencing

enhancement when it found her offense was extensive in scope, planning, or

preparation.

      The government cross-appeals, arguing that the district court lacked

jurisdiction to change Rodriguez’s 50-month sentences from running

consecutively to running concurrently with her undischarged term of

imprisonment.

I. Background

      On July 21, 2011, a federal grand jury indicted Rodriguez for three counts

of knowingly making false statements to federal officials, in violation of 18 U.S.C.

§ 1001(a)(2). According to the indictment, on or about February 4, 2010,

Rodriguez, an inmate in the Federal Detention Center (FDC) in Miami, knowingly

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and falsely represented to a special agent within the Department of Justice, that her

prison-issued clothing contained semen of a correctional officer who had sexually

assaulted her. On or about February 12, 2010, Rodriguez told the same story to a

Federal Bureau of Investigation (FBI) special agent. On or about February 25,

2010, Rodriguez knowingly and falsely told an FBI special agent that she had

saved hair cuttings containing the semen of an FDC correctional officer who had

sexually assaulted her. When tested, the DNA matched that of Rodriguez’s

boyfriend. The DNA did not match the DNA of the FDC correctional officer

Rodriguez alleged had sexually assaulted her.

      A jury returned a guilty verdict on all counts. Count Two, however, was

dropped; Rodriguez was only sentenced on Counts One and Three, each count

carrying a 50-month sentence.

      On November 15, 2011, the district court held that the current sentences

would be consecutive to the undischarged term of imprisonment. The minute

entry for sentencing, however, reflected that the current sentence was to run

concurrently with the undischarged term. Rodriguez immediately filed notice of

appeal. On November 16, 2011, the district court entered an amended judgment,

ordering that the 50-month sentences instead run concurrently with Rodriguez’s

undischarged term of imprisonment. The district court did not issue an

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accompanying order or opinion explaining its reasoning for entering the amended

judgment. Rodriguez again filed notice of appeal on November 18, 2011. The

government filed notice of cross-appeal on December 16, 2011.

II. Analysis

      A. Rodriguez’s Claims on Appeal

             1. Prosecutorial Misconduct

      Rodriguez argues that the following comments made by the prosecutor in

closing argument were not based on evidence and amounted to prosecutorial

misconduct: (1) Rodriguez’s allegations of sexual assault could have ruined the

life of the accused correctional officer, and (2) because investigators spent time

investigating Rodriguez’s allegations, real cases were neglected.

      We review claims of prosecutorial misconduct de novo. United States v.

Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). To establish prosecutorial

misconduct, the defendant must show both that the prosecutor’s remarks were

improper, and that those remarks prejudicially affected her substantial rights. Id.

While a prosecutor may not exceed the evidence presented at trial during her

closing argument, she may state conclusions drawn from the evidence presented at

trial. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997). “Although a

prosecutor may not make an argument directed to passions or prejudices of the

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jurors instead of an understanding of the facts and law, there is no prohibition on

colorful and perhaps flamboyant remarks if they relate to the evidence adduced at

trial.” Id. (internal citations and quotation marks omitted). A prosecutor may

argue the conclusions that the jury should draw from the evidence. United States

v. Johns, 734 F.2d 657, 663 (11th Cir. 1984).

      In addition to showing that the prosecutor’s remarks were improper, a

defendant must also show that those remarks prejudiced her substantial rights.

Eckhard, 466 F.3d at 947. Improper remarks prejudice the defendant’s substantial

rights if there is a reasonable probability that the outcome of the trial would have

been different but for the remarks. Id. If “the record contains sufficient

independent evidence of guilt, any error is harmless.” Id.

      Here, the prosecutor’s remarks were not improper and did not prejudice

Rodriguez’s substantial rights. When the prosecutor told the jury that the agents

had to spend time investigating Rodriguez’s allegations and thus could not

investigate real cases, the prosecutor likely intended to remind the jury of the fact

that Rodriguez’s lies were material and had real consequences. Similarly, the

prosecutor’s comment that Rodriguez’s lies could have ruined the correctional

officer’s life was a common-sense inference as to the likely consequences of

Rodriguez’s lies. See e.g. Bailey, 123 F.3d at 1400; Johns, 734 F.2d at 663.

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      The prosecutor’s comments during closing argument were not improper and

did not prejudice Rodriguez’s substantial rights.

             2. Three-Level Enhancement

      Next, Rodriguez contends that the district court erred in determining that

she substantially interfered with the administration of justice. Specifically,

Rodriguez argues that the three-level enhancement cannot apply because the

government resources expended were part of the investigation into and the

prosecution of her false claims. See United States v. Johnson, 485 F.3d 1264,

1271 (11th Cir. 2007) (noting that “the government correctly recognized at

sentencing that it could not rely on any investigative costs incurred prior to

Johnson’s false testimony or the expenses associated with prosecuting Johnson's

underlying perjury offense.”).

      “We review the district court’s factual findings for clear error and its

application of the Guidelines de novo.” United States v. Newman, 614 F.3d 1232,

1235 (11th Cir. 2010) (internal quotation marks omitted). Section 2J1.2(b)(2) of

the Guidelines provides a three-level enhancement if the offense resulted in a

“substantial interference with the administration of justice.” U.S.S.G.

§ 2J1.2(b)(2). The commentary explains that substantial interference with the

administration of justice includes, among other things, “the unnecessary

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expenditure of substantial governmental or court resources.” § 2J1.2 cmt. n.1.

      In United States v. Johnson, we interpreted this commentary with regard to

a perjury offense. 485 F.3d at 1271. We upheld the district court’s application of

a three-level enhancement under § 2J1.3(b)(2) for unnecessary expenditure of

substantial government or court resources. As a result of the defendant’s false

grand jury testimony, the government was forced to identify and interview several

other witnesses, review the defendant’s records, and reconvene the grand jury,

which required the government to pay travel expenses for grand jury members,

prosecutors, and witnesses. Id. at 1272. We also held that the government need

not specify the number of hours expended by government employees to sustain the

enhancement. Id. at 1271.

      In this case, the record shows the expenditure of substantial government

resources that were required to investigate Rodriguez’s initial claims of sexual

assault. First, Rodriguez was interviewed on multiple occasions by different

agents. She was moved to a different jail during the investigation. An Assistant

United States Attorney had to prepare a search warrant in order to obtain DNA

from the alleged perpetrator. DNA had to be collected from Rodriguez’s

boyfriend and her alleged attacker. Lastly, the DNA collected (pants, hair, saliva)

had to be tested and analyzed. DNA testing and analysis is a time consuming and

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expensive process.

      The record reflects that these resources were spent investigating

Rodriguez’s allegations and identifying her alleged assailant, and thus are

attributable to her criminal conduct for purposes of the Guidelines. Rodriguez has

not shown that the district court clearly erred in determining that she substantially

interfered with the administration of justice by causing the unnecessary

expenditure of substantial governmental resources.

             3. Two-Level Enhancement

      Rodriguez contends that her offense was not extensive in scope, planning,

or preparation because it involved her claiming that she had been the victim of

sexual assault and because DNA analyses quickly proved that her allegations were

not supported in fact.

      Section § 2J1.2(b)(3)(C) provides for a two-level enhancement where the

offense “was otherwise extensive in scope, planning, or preparation.” U.S.S.G.

§ 2J1.2(b)(3)(C). Rodriguez’s offense was “extensive in scope, planning, [and]

preparation” and the district court did not err in so finding. See id.

      Here, the district court found Rodriguez’s offense extensive in scope and

planning “because [it] involve[d] a gathering together of lies and

misrepresentations.” This court agrees. It could not have been an easy task for

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Rodriguez to obtain a semen sample from her boyfriend while he visited her in a

guarded visiting room and to then use that semen in such a way that would allow

her to have semen-stained pants in her cell. To further corroborate her story,

Rodriguez provided her boyfriend with a sample of her hair so he could later

produce her hair with a semen sample on it. Rodriguez directed agents to her

boyfriend so he could give them the hair sample.

      Given the constraints of incarceration, Rodriguez’s offense clearly involved

extensive planning and preparation and the district court did not err in awarding

the two-level enhancement.

      B. Government’s Cross-Appeal

      In its cross-appeal, the government maintains that the district court lacked

jurisdiction to amend Rodriguez’s sentences. The original sentences were to run

consecutively to Rodriguez’s current undischarged prison term, but the district

court amended the judgment so that the sentences would run concurrently.

      Generally, the filing of a notice of appeal divests the district court of

jurisdiction over aspects of the case involved in the appeal. United States v.

Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995). Nevertheless, the district court

retains jurisdiction to correct a sentence pursuant to Rule 35(a). Fed. R. App.

P. 4(b)(5).

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      A district court may not modify a term of imprisonment except under

limited circumstances, including to the extent expressly permitted by statute or by

Federal Rule of Criminal Procedure 35. 18 U.S.C. § 3582(c)(1)(B). Rule 35(a)

permits district courts to correct arithmetical, technical, or other clear errors in a

sentence within 14 days of sentencing. Fed. R. Crim. P. 35(a). The advisory

committee note explains that the authority to correct a sentence under Rule 35(a)

is intended to be very narrow and is not intended to give the court an opportunity

to change its mind about the appropriateness of a sentence. Fed. R. Crim.

P. 35 advisory committee’s note; see also United States v. Phillips, 597 F.3d 1190,

1196–97, 1199, 1201 (11th Cir. 2010) (stating that the limitations of Rule 35(a)

are jurisdictional in nature).

      In United States v. Lett, we vacated a re-sentencing order where the district

court’s original sentence was permissible under the Guidelines and the applicable

statutes. 483 F.3d 782, 791 (11th Cir. 2007). The district court initially imposed a

60-month sentence of imprisonment; 60 months was the mandatory minimum

sentence. Id. at 785. After further reflection, however, the court determined that,

under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), it could sentence the defendant

below the statutory mandatory minimum. Id. at 786–87. Acting within the time

limit, and purportedly under the authority provided by Rule 35(a), the district court

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modified the defendant’s sentence to below the mandatory minimum. Id. The

government appealed the district court’s amended sentence. Id. at 787. On

appeal, this court explained that Rule 35(a) provides district courts with only “a

narrow corrective power” that is limited to obvious errors. Id. at 788. Because the

sentence originally imposed was “plainly permissible” under the Guidelines and

applicable statutes, we vacated the district court’s re-sentencing order and

remanded with instructions to impose the original sentence. Id. at 788, 791.

      Section 3742(b) of Title 18 authorizes the government to appeal an

otherwise final sentence if that sentence was imposed “in violation of law.”

18 U.S.C. § 3742(b)(1). We have explained that the legislative history and

symmetrical structure of § 3742 indicate Congress’s intent that the government

and defendants be able to appeal sentences on the same terms. United States

v. Chavarria-Herrara, 15 F.3d 1033, 1036 (11th Cir. 1994). We have further held

that under § 3742(b), this court has jurisdiction over government appeals of a

sentence reduced pursuant to Rule 35(b). Id.

      Here, the district orally sentenced Rodriguez to two terms of 50-months

imprisonment to run consecutively to her undischarged term of imprisonment.

The initial sentencing order also reflects that the sentences run consecutively. On

the docket sheet, the minute entry for the sentencing proceedings reads that the 50-

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month sentences should run concurrently. After Rodriguez initially appealed, the

district court amended its sentencing order so that the two 50-month sentences

would run concurrently to the undischarged prison term. However, the district

court offered no explanation as to why it amended its judgment; there appears to

be no technical, arithmetical or other clear error in its original sentencing order.

See 18 U.S.C. 3582(c)(1)(B); Fed. R. Crim. P. 35(a); United States v. James, 597

F.3d 1190, 1196 (11th Cir. 2010) (noting that “under Rule 35(a), a court can

correct a sentence only for arithmetical, technical, or other clear error.”).

Consequently, the district court lacked jurisdiction to amend Rodriguez’s

sentences, and in the absence of an arithmetical, technical, or other clear error, her

50-month sentences should run consecutively to her current undischarged prison

sentence.

      Accordingly, we affirm in part, reverse in part, and remand to the district

court with instructions to reinstate its original judgment.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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