                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 01 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10580

              Plaintiff-Appellee,                D.C. No. 4:90-cr-00335-CKJ

 v.
                                                 MEMORANDUM*
LOURDES VALENZUELA,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and CHRISTEN, Circuit Judges.

      Lourdes Valenzuela appeals from the district court’s order under Rule 36 of

the Federal Rules of Criminal Procedure amending Valenzuela’s 1991 judgment of

conviction to correct a clerical error regarding the statutes of conviction. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Although Valenzuela concedes on appeal that the original judgment cited the

incorrect statute for Count 3, he argues that the district court was required to

consult the transcript of the oral pronouncement of sentence before amending the

judgment. We disagree. The indictment, jury instructions, and jury verdict all

demonstrate that Valenzuela was charged with and convicted of a violation of 18

U.S.C. § 2241(a)(1) and (2), rather than 18 U.S.C. § 2244(a), in Count 3. Under

these circumstances, the district court did not clearly err in correcting the statute of

conviction for Count 3. See United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir.

1985) (grant of a Rule 36 motion is reviewed for clear error).

      Moreover, contrary to Valenzuela’s argument, changing the statutory

citation for Count 3 from 18 U.S.C. § 2244 to 18 U.S.C. § 2241(a)(1) and (2) does

not constitute a substantive change in the judgment because the amendment does

not alter the term of Valenzuela’s sentence. See United States v. Kaye, 739 F.2d

488, 491 (9th Cir. 1984) (Rule 36 permitted amendment to add omitted count

numbers but not amendment to increase sentence based on district court’s

inadvertent failure to impose sentence on omitted counts).

      AFFIRMED.




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