United States v. Pedro Hernandez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 17, 2019
• Docket: 18-11966
• Status: Unpublished

Opinion

Case: 18-11966 Date Filed: 01/17/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11966 Non-Argument Calendar ________________________

D.C. Docket No. 1:14-cr-20807-FAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO HERNANDEZ, a.k.a. Peter Hernandez,

Defendant-Appellant.

________________________

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

(January 17, 2019)

Before TJOFLAT, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-11966 Date Filed: 01/17/2019 Page: 2 of 3

Pedro Hernandez pled guilty to conspiring to commit wire fraud and health

care fraud. As part of his plea agreement, he agreed to pay $11,525,227 in

restitution, and he agreed to make restitution payments jointly and severally with

his co-conspirators. The District Court sentenced Hernandez to 96 months’

imprisonment and ordered Hernandez to pay $11,527,227 in restitution, jointly and

severally with his co-conspirators. He did not appeal his sentence or move to

vacate it under 28 U.S.C. § 2255.

More than two and a half years later, Hernandez moved the District Court to

correct the presentence investigation report (“PSI”) under Rule 36 of the Federal

Rules of Criminal Procedure. He raised two “clerical” errors. First, he claimed the

amount of restitution computed in the PSI violates the Eighth Amendment, federal

statutory law, and Supreme Court precedent. He argued that he should not have

been ordered to pay restitution because, as a salaried employee of the company that

perpetrated the wire fraud, he did not share in the profits. Second, Hernandez

claimed the mass-marketing enhancement, imposed under U.S.S.G.

§ 2B1.1(b)(2)(A)(ii) was improper. He argued that the enhancement was improper

because the recipients of the mass-marketing campaign were not victims of the

fraud. The District Court denied the motion. Hernandez now appeals pro se.

We review de novo legal issues presented in a Rule 36 motion to correct a

judgment. See United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (per

2 Case: 18-11966 Date Filed: 01/17/2019 Page: 3 of 3

curiam). Under Rule 36, “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.” Id. For example, a district court may use Rule 36 to

correct a clerical error in a judgment to ensure that the judgment matches the oral

sentence. Id. By contrast, “Rule 36 may not be used ‘to make a substantive

alteration to a criminal sentence.’” Id. (quoting United States v. Pease, 331 F.3d

809, 816 (11th Cir. 2003)).

Here, Hernandez’s proposed amendments are clearly substantive. He argues

that restitution is inappropriate because he did not share in the company’s profits.

This is a factual dispute, and changing the judgment on this basis would mean

changing the substance of the judgment. He also challenges his Guideline

calculation. This is a legal argument, and changing the judgment on this basis

would also mean changing the substance of the judgment.

Accordingly, we affirm the District Court.

AFFIRMED.