United States v. Isaac Marion, Sr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 14, 2019
• Docket: 18-14193
• Status: Unpublished

Opinion

Case: 18-14193 Date Filed: 08/14/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14193 Non-Argument Calendar ________________________

D.C. Docket No. 2:08-cr-00158-JES-DNF-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISAAC MARION, SR., a.k.a. "T",

Defendant-Appellant.

________________________

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

(August 14, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-14193 Date Filed: 08/14/2019 Page: 2 of 4

Isaac Marion, Sr., a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion to correct judgment under Fed. R. Crim. P. 36. On

appeal, Marion argues that the district court erred by denying his motion because

the judgment should have reflected the sentencing court’s intent that his 188-month

total sentence run concurrently from the beginning of the 108-month sentences that

he was already serving, rather than running concurrently with the undischarged

term of those sentences, a difference of 38 months. He also argues that the 38-

month error violates his rights under the Double Jeopardy Clause of the Fifth

Amendment.

We review de novo a district court’s application of Rule 36. United States v.

Davis, 841 F.3d 1253, 1261 (11th Cir. 2016). We review questions of our

appellate jurisdiction de novo. United States v. Lopez, 562 F.3d 1309, 1312 (11th

Cir. 2009). Constitutional objections not raised before the district court are

reviewed only for plain error. United States v. Moriarty, 429 F.3d 1012, 1018

(11th Cir. 2005). To establish plain error, a defendant must show: (1) error;

(2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. at 1019.

Under Rule 36, the district 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. A clerical error is one

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that is “minor and mechanical in nature,” such as where the written judgment does

not correctly reflect the court’s oral pronouncement. United States v. Portillo, 363

F.3d 1161, 1165 (11th Cir. 2004). Rule 36 cannot be used to make a substantive

alteration to a criminal sentence. Id. at 1164.

U.S.S.G. 5G1.3(b) provides that, if a term of imprisonment resulted from

another offense that is relevant conduct to the instant offense of conviction, the

sentence for the instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and

(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b). The provisions of § 5G1.3(b) are mandatory. United States

v. Gonzalez-Murillo, 852 F.3d 1329, 1339 (11th Cir. 2017). Thus, where its

requirements are met, the court must adjust a prisoner’s sentence. Id.

A sentence to a term of imprisonment begins on the date the defendant is

received in custody awaiting transportation to the official detention facility at

which the sentence is to be served. 18 U.S.C. § 3585(a).

The district court did not err in denying Marion’s Rule 36 motion because it

correctly determined that the judgment did not contain clerical errors in need of

correction. See Portillo, 363 F.3d at 1165. The sentencing transcript does not

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support Marion’s argument that the court intended either to credit him for the 38

months he had already served on the first sentence or for the first and second

sentences to run fully concurrently, and the judgment reflected exactly what the

court pronounced at sentencing. Because the judgment reflected the court’s oral

pronouncement at sentencing, Marion’s argument that he should have received 38

months of credit is a substantive argument that the district court erred in its

application of U.S.S.G. § 5G1.3(b), not an argument that the judgment contained a

minor or mechanical error. See Portillo, 363 F.3d at 1165. The district court could

not make a substantive alteration to his sentence under Rule 36 and, thus, correctly

denied his motion. See id. at 1164. Similarly, the district court did not plainly err

in denying Marion’s motion on the ground that the 38-month error subjected him

to double jeopardy, because that too is a substantive argument not suitable for a

Rule 36 motion. See id. Accordingly, the district court did not err in concluding

that the judgment did not contain an error that should be remedied under Rule 36.

AFFIRMED.