           Case: 17-15594   Date Filed: 04/12/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15594
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:06-cr-60238-PCH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

BOBBY MINNIS,

                                                         Defendant-Appellant.

                       ________________________

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

                             (April 12, 2019)



Before JILL PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Bobby Minnis, through his lawyer, appeals the district court’s denial of

Minnis’s pro se motion to correct illegal sentence. No reversible error has been

shown; we affirm.

      In 2006, a federal grand jury charged Minnis with one count of traveling in

interstate commerce for the purpose of engaging in illicit sexual conduct with a

minor, in violation of 18 U.S.C. § 2423(b). Minnis pleaded guilty pursuant to a

written plea agreement.

      Meanwhile -- based on the same conduct underlying Minnis’s federal

offense -- Minnis had been charged earlier in Florida state court with several

counts of lewd and lascivious battery (the “2005 case”). While awaiting trial in the

2005 case, Minnis attempted to hire a hitman to murder the 14-year old victim

involved in the 2005 case. Based on that conduct, Minnis was charged in state

court with solicitation to commit murder (the “2008 case”). Minnis pleaded guilty

to both state offenses. In the 2005 case, the state court sentenced Minnis to a total

of 20 years’ imprisonment. The state court later imposed a 20-year sentence in the

2008 case, to run concurrent and coterminous with the sentence in the 2005 case.




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      At Minnis’s federal sentencing hearing, both the government and Minnis

requested that Minnis’s federal sentence run concurrent with Minnis’s state court

sentences. In response, the sentencing judge expressed deep concern about the

seriousness of Minnis’s offenses. The sentencing judge said expressly that a

concurrent sentence -- which would result in a total sentence of 20-years’

imprisonment for all of Minnis’s offenses -- would be inappropriate and

insufficient punishment in the light of the 18 U.S.C. § 3553(a) factors. The district

court focused especially on Minnis’s history and characteristics, the seriousness of

his offense, and the need to protect the public.

      The district court sentenced Minnis to 97 months’ imprisonment: the high

end of the sentencing guidelines range. The district court then said that the “terms

of imprisonment shall run concurrently with the [2005 case] and shall run

concurrently and consecutively with regard to the [2008 case]. To the extent -- all

but five years shall run concurrently. The balance of five years shall run

consecutive to his State imprisonment.”

      The written judgment -- entered in October 2008 -- provided that Minnis’s

97-month “term of imprisonment shall run concurrently with [the 2005 case]. This

term of imprisonment shall also run both concurrently and consecutively to [the

2008 case] to the extent that all but five (5) years shall run concurrent with [the

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2008 case] and five (5) years shall run consecutively.” Neither Minnis nor the

government appealed.

       In 2016, the district court sua sponte entered an amended judgment pursuant

to Fed. R. Crim. P. 36. The amended judgment provided that Minnis’s 97-month

sentence “shall commence when the defendant has thirty-seven (37) months

remaining on his sentences in [the 2005 case] and [the 2008 case], and shall run

concurrently with those sentences until sixty (60) months of the term remain, at

which point the sentence will run consecutively to [the 2005 case] and [the 2008

case].”

       Minnis filed several pro se motions challenging the 2016 amended

judgment, including the motion to correct illegal sentence at issue in this appeal. *

The district court denied Minnis’s motion, concluding that the 2016 amended

judgment made no substantive change to Minnis’s original 2008 judgment.

Instead, the district court said that the amended judgment clarified the original

judgment and gave effect to the sentencing court’s intention to have Minnis serve

five years’ imprisonment in addition to his state court sentences.




*
 Contrary to the government’s argument, Minnis appealed timely the district court’s 28
November 2017 denial of his motion to correct illegal sentence. Minnis delivered to prison
officials his notice of appeal on 8 December 2017: within the pertinent 14-day time limit. See
Fed. R. App. P. 4(b)(1)(A)(i).
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      Rule 36 provides that “[a]fter giving any notice it considers appropriate, 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. Courts may not use Rule 36 to make substantive changes to a

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

      “When the orally imposed sentence differs from the written order of

judgment, the oral sentence controls.” United States v. Ridgeway, 319 F.3d 1313,

1315 (11th Cir. 2003). Under Rule 36, the district court may “at any time” correct

a “clerical” error in the written judgment “to ensure that the judgment is in accord

with the oral sentence.” Portillo, 363 F.3d at 1164. “In determining the terms of a

sentence, it is the intent of the sentencing judge which controls, and that intent is to

be determined by reference to the entire record.” United States v. Purcell, 715

F.2d 561, 563 (11th Cir. 1983).

      On this record, the sentencing judge intended unambiguously to sentence

Minnis to a term of imprisonment, five years of which would run consecutively to

Minnis’s state court sentences in the 2005 and the 2008 cases. The sentencing

judge said expressly that a 20-year total sentence was insufficient in this case based

on consideration of the section 3553(a) factors. The sentencing judge also

concluded the oral pronouncement by ordering that “all but five years shall run

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concurrently. The balance of five years shall run consecutive to his State

imprisonment.”

      To the extent that the original written judgment conflicted with the

sentencing judge’s oral pronouncement, the district court was authorized under

Rule 36 to amend the written judgment to reflect accurately the oral sentence. See

Portillo, 33 F.3d at 1164. The amended judgment made no substantive change to

the oral sentence and, instead, clarified how the sentence was to be carried out

consistent with the unambiguous intent of the sentencing court. The district court

committed no error in denying Minnis’s motion.

      AFFIRMED.




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