United States v. Jean Pompee

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 10, 2019
• Docket: 18-13352
• Status: Unpublished

Opinion

Case: 18-13352 Date Filed: 09/10/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13352 Non-Argument Calendar ________________________

D.C. Docket No. 1:14-cr-20457-KMW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEAN POMPEE,

Defendant-Appellant.

________________________

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

(September 10, 2019)

Before TJOFLAT, WILSON and HULL, Circuit Judges.

PER CURIAM: Case: 18-13352 Date Filed: 09/10/2019 Page: 2 of 3

Jean Pompee, serving consecutive sentences of 51 months---27 months for

possessing 15 or more unauthorized access devices, in violation of 18 U.S.C. §

1029(a)(3), and 24 consecutive months for aggravated identity theft, in violation of

18 U.S.C. § 1028(a)(1)---appeals the district court’s order denying his “Motion to

Award Credit for Time Served.” He argues that the court’s judgment is silent on

the issue of time served and that contrary to the court’s position, it had the

authority under Federal Rule of Criminal Procedure 36 to clarify whether it

intended his 51 months total sentence to run concurrently or consecutively to his

yet-to-be-imposed state sentence for violating his probation. We affirm the district

court’s order because the court lacked subject matter jurisdiction to grant Pompee

the relief he seeks.

Rule 36 provides that 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. Rule 36 cannot be used to make

substantive alterations to a criminal sentence. United States v. Davis, 841 F.3d

1253, 1261 (11th Cir. 2016). What Pompee seeks is not the correction of a clerical

error, but the modification of his sentences, a service Rule 36 cannot provide. In

sum, the district court lacked the authority under Rule 36 to modify the judgment

in this case to reflect that Pompee’s federal and state sentences should run

concurrently.

2 Case: 18-13352 Date Filed: 09/10/2019 Page: 3 of 3

SO ORDERED.