14-355
United States v. Rodriguez

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1
and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 19th day of December, two thousand fourteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            RALPH K. WINTER,
            SUSAN L. CARNEY,
                  Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

               Appellee,

               - v. -                                       No. 14-355

DIEGO B. RODRIGUEZ,

               Defendant-Appellant,

ALAN QUINONES, HECTOR VEGA, JANET SOTO, MILTON RIVERA, JOSEPH C.
BROWN, JOHNNY RODRIGUEZ, SAUL HERNANDEZ, RAUL HERNANDEZ, ROBERT
VEVE,

            Defendants.
____________________________________________________________

For Defendant-Appellant:              Malvina Nathanson, New York, New York




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For Appellee:                          Nicholas J. Lewin, Michael A. Levy, Assistant U.S.
                                       Attorneys, for Preet Bharara, U.S. Attorney for the
                                       Southern District of New York, New York, New York


       Appeal from the United States District Court for the Southern District of New York
(Rakoff, J.).


       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is hereby AFFIRMED.

       Defendant-Appellant Diego B. Rodriguez appeals from a November 12, 2013 order

correcting his sentence pursuant to Federal Rule of Criminal Procedure 36. We assume the

parties’ familiarity with the relevant facts, procedural history of the case, and the issues

presented for review.

       Rodriguez’s sole argument on appeal is that he should have been present when the district

court corrected his sentence pursuant to Rule 36, which permits district courts to correct “clerical

error[s] in a judgment, order, or other part of the record.” Rodriguez relies on Rule 43(a)(3),

which requires defendants to be present at “sentencing.” Although Rule 43(b)(4) creates an

exception to this requirement for corrections of sentences pursuant to Rule 35 or 18 U.S.C. §

3582(c), it does not explicitly carve out corrections of clerical errors pursuant to Rule 36.

       We need not reach the question of whether Rule 43 entitled Rodriguez to be present at the

correction of his sentence. Even assuming the district court erred by correcting the sentence

without Rodriguez present, any such error was harmless. As Rodriguez himself acknowledged in

asking the district court to correct his sentence, the corrected sentence was substantively identical

to Rodriguez’s original sentence. See J.A. 93 (“The Petitioner does not come before the Court in

an attempt to alter his sentence, Petitioner does not seek a modification of any type . . . .”).

Instead, the district court simply removed clerical errors from the defendant’s judgment and



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sentence, and excised an anomalous $100 special assessment. Because the corrected sentence

was, if anything, less onerous than the defendant’s original sentence, any error caused by the

defendant’s absence was at most harmless. See United States v. Arrous, 320 F.3d 355, 361 (2d

Cir. 2003) (“[W]e have applied harmless error when the resentence is less onerous than the

original sentence or when a defendant’s presence would not have affected the outcome of the

resentencing.” (internal citations omitted)). Accordingly, for the foregoing reasons, the judgment

of the district court is AFFIRMED.


                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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