United States v. Isaac Kelvin Allen

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 5, 2018
• Docket: 14-15344
• Status: Unpublished

Opinion

Case: 14-15344 Date Filed: 09/05/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-15344 Non-Argument Calendar ________________________

D.C. Docket No. 8:07-cr-00212-JDW-TBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISAAC KELVIN ALLEN,

Defendant-Appellant.

________________________

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

(September 5, 2018) Case: 14-15344 Date Filed: 09/05/2018 Page: 2 of 5

Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:

Isaac Kelvin Allen, proceeding pro se, appeals the district court’s order

granting in part and denying in part 1 his motion requesting correction of clerical

errors in his forfeiture money judgment and Presentence Investigation Report (PSI)

under Federal Rule of Criminal Procedure 36. Allen contends the district court

erred in: (1) not correcting the PSI’s misclassification of his felony convictions;

(2) failing to correct the probation officer’s $500 understatement of the loss

amount attributed to him for one of his identity theft victims; and (3) holding him

jointly and severally liable for the loss amount with his common-law wife and the

mother of his child, Tara Pasco. Allen also asserts the forfeiture ordered at his

2008 sentencing exceeded the maximum amount allowable by statute and that his

amended forfeiture money judgment does not reflect that he was held jointly and

severally liable with Pasco for restitution. After review,2 we affirm. 3

1 The district court issued an amended forfeiture money judgment reflecting that Allen pled guilty to making false statements. This partial grant of the motion is not at issue on appeal. 2 We review de novo the district court’s application of Federal Rule of Criminal Procedure 36 to correct clerical errors. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). 3 Allen has also filed three motions before this Court. First, Allen moves under 28 U.S.C. § 2106 for this Court to remand his restitution judgment to the district court for the correction of several sentencing errors. This motion is denied as moot because the relief requested therein mirrors the relief requested in this appeal. Second, Allen moves to be absolved of his collateral- attack waiver. This motion, too, is denied as moot because this Court has resolved Allen’s appeal without relying upon his collateral-attack waiver. Finally, Allen moves for this Court to 2 Case: 14-15344 Date Filed: 09/05/2018 Page: 3 of 5

Federal Rule of Criminal Procedure 36 provides “[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. Importantly, Rule 36 may not

be used to make a substantive alteration to a criminal sentence. United States v.

Davis, 841 F.3d 1253, 1261 (11th Cir. 2016), cert. denied, 137 S. Ct. 2318 (2017).

It applies only to clerical mistakes. United States v. Portillo, 363 F.3d 1161, 1164

(11th Cir. 2004) (concluding that the district court properly applied Rule 36 to

correct a clerical error in the judgment so that the judgment corresponded with the

oral pronouncement of the sentence); United States v. Reeves, 742 F.3d 487, 507

n.12 (11th Cir. 2014) (describing the type of clerical errors curable under Rule 36

as “scrivener’s errors”). We have, for example, remanded cases to the district

court to correct clerical errors where the judgment listed the correct crime, but

listed the wrong corresponding count in the indictment. United States v. Massey,

443 F.3d 814, 822 (11th Cir. 2006).

The question is whether the purported errors Allen identifies are clerical or

substantive. We address each in turn. First, Allen asserts the probation officer

misclassified his aggravated identity theft convictions as Class D felonies, as

take judicial notice of out-of-circuit judicial opinions. This motion is denied because this Court can consider out-of-circuit judicial opinions without taking judicial notice of them. 3 Case: 14-15344 Date Filed: 09/05/2018 Page: 4 of 5

opposed to Class E felonies. This was not a clerical error. It does not appear, for

example, that the probation officer mistakenly transposed the letter “D” for “E”

when drafting the PSI. Rather, the probation officer analyzed Allen’s aggravated

identity theft convictions under the wrong statute. Thus, the error is substantive

and cannot be corrected under Rule 36. See Davis, 841 F.3d at 1261.

Second, Allen contends the district court erred by failing to correct the

probation officer’s $500 understatement of the loss amount attributed to him for

one of his identity theft victims. We need not decide whether this error was

clerical or substantive because it was harmless. The discrepancy Allen identifies

would not have impacted his guideline range and it certainly did not increase the

amount of restitution he owed.

Allen also asserts that the judgment incorrectly states that he is to be held

jointly and severally liable for the loss amount with his common-law wife and the

mother of his child, Tara Pasco. We disagree. The language in the judgment

accurately reflects the district court’s statement at sentencing that Allen would be

held jointly and severally liable with Pasco. Thus, there is no clerical error. To the

extent Allen is challenging the propriety of holding him jointly and severally liable

4 Case: 14-15344 Date Filed: 09/05/2018 Page: 5 of 5

with Pasco, that is a substantive challenge to his sentence which falls outside the

scope of Rule 36. 4

Finally, Allen asserts the forfeiture ordered at his 2008 sentencing exceeded

the maximum amount allowable by statute. In Portillo, we rejected a defendant’s

attempt to challenge his sentence in an appeal of a Rule 36 order correcting two

clerical errors regarding his restitution obligations in the judgment. 363 F.3d at

1164–66. Portillo’s conviction and sentence became final years before he filed the

appeal, and we stated that the corrected judgment did not alter his sentence in any

way. Portillo, 363 F.3d at 1165–66. Portillo could not base his appeal on the

correction of the clerical errors because the time allowed for raising his substantive

challenges “ha[d] long since expired under” Federal Rule of Appellate Procedure

4(b)(1)(A). Id. at 1166. Similarly, here, the amendment to the forfeiture money

judgment did not substantively alter Allen’s sentence in any way. Therefore,

Allen’s substantive challenge to his 2008 sentence is improper.

AFFIRMED.

4 Relatedly, Allen’s argument that the amended forfeiture money judgment erroneously failed to state that Tara Pasco was being held jointly and severally liable with him is without merit. Both his conviction and sentence reflect that Allen’s restitution obligation is joint and several with Pasco. 5