United States v. Kyle E. McClamma

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 16, 2020
• Docket: 19-11533
• Status: Unpublished

Opinion

USCA11 Case: 19-11533 Date Filed: 10/16/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT _____________________

No. 19-11533 Non-Argument Calendar _____________________

D.C. Docket No. 5:05-cr-00046-SDM-PRL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KYLE E. MCCLAMMA,

Defendant-Appellant.

_____________________

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

(October 16, 2020)

Before WILLIAM PRYOR, Chief Judge, and JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM: USCA11 Case: 19-11533 Date Filed: 10/16/2020 Page: 2 of 4

In September of 2006, the district court sentenced Kyle McClamma to 36

months in prison and a lifetime term of supervised release for possession of child

pornography. One of the conditions of supervised release was that Mr. McClamma

not have direct contact with minors without the written approval of his probation

officer. Following his release from prison, Mr. McClamma sought to clarify or

modify this condition with respect to his daughter. The district court, with the

agreement of Mr. McClamma and the government, modified the condition to allow

Mr. McClamma to have contact with his daughter when supervised by an approved

third party.

Since then, Mr. McClamma has challenged this condition of supervised

release on various grounds. All of those challenges have failed. See United States v.

McClamma, 548 F. App’x 598 (11th Cir. 2013); United States v. McClamma, 613

F. App’x 846 (11th Cir. 2015); United States v. McClamma, 676 F. App’x 944 (11th

Cir. 2017); McClamma v. United States, 697 F. App’x 664 (11th Cir. 2017).

In 2019, Mr. McClamma—proceeding pro se—filed a motion under Rule 36

of the Federal Rules of Criminal Procedure to correct a clerical error. He argued

that there was an error in his criminal judgment as to the no-contact-with-minors

condition because the district court did not orally pronounce the condition at the

sentencing hearing. The district court denied the motion, and Mr. McClamma now

appeals.

2 USCA11 Case: 19-11533 Date Filed: 10/16/2020 Page: 3 of 4

Exercising de novo review, see United States v. Portillo, 363 F.3d 1161, 1164

(11th Cir. 2004), we affirm. Assuming that Mr. McClamma can proceed under Rule

36, see id., and that he has not waived his current challenge due to his agreement to

the modification of the condition, see McClamma, 697 F. App’x at 665, there was

no clerical error to correct.

At sentencing, the district court stated that it would impose the conditions

normally imposed in child pornography cases “concerning avoidance of places

frequented by prepubescent minors without the written consent of the probation

officer and the like.” D.E. 38 at 42 (emphasis added). Due to this pronouncement,

there was an ambiguity in the sentencing transcript rather than a conflict between

the transcript and the written judgment. And where there is an ambiguity, we “look

to the written judgment to ascertain the district court’s intention.” United States v.

Purcell, 715 F.2d 561, 563 (11th Cir. 1983). In our view, the judgment is consistent

with the intent of the district court that Mr. McClamma have no contact with minors,

a condition that may be imposed in child pornography cases. That condition was

reasonably related to the nature and circumstances of Mr. McClamma’s child

pornography conviction. See 18 U.S.C. § 3583(d)(1); United States v. Widmer, 785

F.3d 200, 206-09 (6th Cir. 2015); United States v. Thompson, 653 F.3d 688, 691-92

(8th Cir. 2011).

3 USCA11 Case: 19-11533 Date Filed: 10/16/2020 Page: 4 of 4

The district court’s denial of Mr. McClamma’s Rule 36 motion is affirmed.1

AFFIRMED.

1 As to other issues raised by Mr. McClamma, we summarily affirm. 4