     Case: 17-10414      Document: 00514669192         Page: 1    Date Filed: 10/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit


                                      No. 17-10414
                                                                          FILED
                                                                    October 4, 2018
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

              Plaintiff - Appellee

v.

JUAN RUVALCAVA-GARZA,

              Defendant - Appellant




                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:16-CR-292-1


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       Upon consideration of the parties’ briefing, we VACATE the district
court’s June 7, 2017 Amended Judgment.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-10414


                                    BACKGROUND
       On April 5, 2017, the district court orally sentenced Juan Ruvalcava-
Garza to ninety-six months’ imprisonment and two years of supervised release
after Ruvalcava-Garza pled guilty to possession with intent to distribute
cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). That same day, the
district court entered an order and judgment restating the oral pronouncement
of Ruvalcava-Garza’s sentence. There were no differences between the oral
pronouncement and the written judgment that are relevant to this appeal.
       On April 13, 2017, 1 Ruvalcava-Garza timely filed a pro se notice of appeal
from his judgment and sentence. On June 7, 2017, after Ruvalcava-Garza’s
notice of appeal and two months after sentencing Ruvalcava-Garza, the district
court entered an amended judgment, increasing Ruvalcava-Garza’s term of
supervised release from two years to three years. The term of imprisonment
did not change. The language in the district court’s order amending judgment
is as follows:
              It has been brought to the Court’s attention that the
              Mandatory Minimum term of Supervised Release is 3
              years by statute. Therefore, pursuant to Fed. Crim. R.
              Pro. 36, the Court ORDERS upon release from
              imprisonment, a term of 3 years Supervised Release is
              imposed.

Ruvalcava-Garza did not file a separate notice of appeal from the amended
judgment.
       On appeal, the Federal Public Defender (“FPD”) initially moved to
withdraw and filed a brief relying on Anders v. California, 386 U.S. 738 (1967).
This court denied the FPD’s motion and ordered briefing on whether the


       1 It appears that Ruvalcava-Garza inadvertently listed the date on his notice of appeal
as April 21, 2017. The document has a district court file stamp of April 13, 2017.
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                                  No. 17-10414
district court properly entered an amended judgment two months after
sentencing, which increased the previously imposed two-year term of
supervised release to three years, and on any other nonfrivolous issue.
                                DISCUSSION
      Ruvalcava-Garza, by and through the FPD, requests this court to vacate
the district court’s amended judgment, arguing that the district court lacked
jurisdiction to enter the amended judgment. Ruvalcava-Garza argues that the
district court lacked jurisdiction because: (1) the amended judgment was
entered after Ruvalcava-Garza filed a notice of appeal, (2) the amended
judgment did not constitute a correction of a clerical error under Federal Rule
of Criminal Procedure 36, and (3) the amended judgment was not entered
within the fourteen-day time limit of Federal Rule of Criminal Procedure 35(a).
      The Government, relying on Manrique v. United States, 137 S. Ct. 1266,
1274 (2017), argues that the appeal should be dismissed as untimely because
Ruvalcava-Garza did not file a separate notice of appeal from the amended
judgment. Alternatively, the Government argues that the court should affirm
the district court’s amended judgment, asserting that the district court
properly corrected a clerical error and filed an amended judgment under
Federal Rule of Criminal Procedure Rule 36.
      In reply, Ruvalcava-Garza argues that Manrique is distinguishable
because the district court therein announced at sentencing that it was still
considering a restitution order and later issued a restitution order from which
the appellant failed to appeal.    In contrast, Ruvalcava-Garza argues, the
district court in this case pronounced its sentencing decision, issued a written
judgment, and later ordered a contradictory sentence in the amended
judgment.
      The court must address the timeliness of Ruvalcava-Garza’s notice of
appeal before reviewing the merits of his argument.
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                                  No. 17-10414
I.    Ruvalcava-Garza’s Notice of Appeal Is Timely
      “To secure appellate review of a judgment or order, a party must file a
notice of appeal from that judgment or order.” Manrique, 137 S. Ct. at 1271.
In a criminal case, a defendant must file a notice of appeal within fourteen
days of entry of judgment. Fed. R. App. P. 4(b)(1)(A)(i).
      A timely notice of appeal in a criminal case is not a jurisdictional
requirement and may be waived or forfeited. United States v. Chapple, 847
F.3d 227, 229 (5th Cir. 2017). However, if the timeliness issue is properly
invoked, it must be enforced. Hamer v. Neighborhood Hous. Servs. of Chicago,
138 S. Ct. 13, 17–18 (2017). Here, the Government invokes the issue.
      In Manrique, a deferred restitution case, the Supreme Court held that
where the Government objects to the timeliness of a notice of appeal, a
defendant’s “single notice of appeal, filed between the initial judgment and the
amended judgment, is [in]sufficient to invoke appellate review of the later-
determined restitution amount.” 137 S. Ct. at 1270. The district court in
Manrique entered an initial judgment against the defendant, imposing terms
for imprisonment and supervised release and expressly deferring its
restitution determination. Id. In its initial judgment order, the district court
noted that it would enter an amended judgment with a restitution
determination at a later date. Id. The defendant filed a notice of appeal from
the initial judgment. Id. Subsequently, the district court held a restitution
hearing and entered an amended judgment imposing restitution. Id. The
defendant failed to file a separate notice of appeal.
      On appeal, the defendant argued that his single notice of appeal
sufficiently appealed both the initial judgment and the amended judgment
imposing restitution, and therefore, was timely.        Id. at 1272.   The Court
rejected the defendant’s arguments observing, inter alia, that: (1) “deferred
restitution cases involve two appealable judgments, not one”; and (2) when the
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defendant had filed his notice of appeal, the district court had not “announced”
its sentence on restitution, and therefore, “the notice of appeal did not spring
forward to become effective on the date the court entered its amended
judgment.” Id. at 1273. The Court also observed that in deferred restitution
cases, “the amount to be imposed is not always known at the time of
sentencing. When that is the case, the court may enter an initial judgment
imposing certain aspects of a defendant’s sentence, such as a term of
imprisonment, while deferring a determination of the amount of restitution
until entry of a later, amended judgment.” Id. at 1270.
      Manrique, a deferred restitution case, is distinguishable from the
present case. Deferred restitution cases have unique circumstances that are
not present here. In Manrique, the district court acknowledged at the initial
sentencing hearing that restitution was mandatory, expressly deferred the
restitution award, entered the initial written judgment that included an
express deferral of the restitution award, conducted a restitution hearing a few
months later, and then entered an amended judgment including the restitution
award. Id.
      Here, the district court entered its final written judgment after a
sentencing hearing, where it orally pronounced its sentence, and made no oral
or written statement regarding deferral of any sentence. Unlike in Manrique,
the district court, had, in fact, “announced” its sentence before Ruvalcava-
Garza filed his notice of appeal. Accordingly, we decline to apply Manrique to
the present case and find that Ruvalcava-Garza’s notice of appeal is timely. 2
We turn now to the merits of his claim.


      2  This court has previously reached the merits of an appeal notwithstanding the
failure of the appellant to file separate notices of appeal from original and amended
judgments. See United States v. Wiley, 641 F. App’x 381, 383–84 (5th Cir. 2016) (reaching
merits where appellant timely appealed from original judgment but not from the later
amended judgment and where the Government did not object); see also Ballard v. Burton,
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                                    No. 17-10414
II.    The District Court Lacked Jurisdiction To Issue An Amended
       Judgment

       Ruvalcava-Garza argues that the district court lacked jurisdiction
because: (1) the amended judgment was entered after Ruvalcava-Garza filed a
notice of appeal, (2) the amended judgment did not constitute a correction of a
clerical error under Federal Rule of Criminal Procedure 36, and (3) the
amended judgment was not entered within the fourteen-day time limit of
Federal Rule of Criminal Procedure 35(a).
       The Government argues that the district court properly corrected a
clerical error and filed an amended judgment under Federal Rule of Criminal
Procedure Rule 36. The Government’s argument is unpersuasive.
       A.    Standard of Review
       This court reviews de novo the district court’s reliance on Rule 36 to issue
an amended judgment after a notice of appeal was filed. See United States v.
Mackay, 757 F.3d 195, 197 (5th Cir. 2014).
       B.    Analysis
       Generally, the filing of a valid notice of appeal divests the district court
of jurisdiction to take any action. However, even after the filing of a valid
notice of appeal, the district court may correct any clerical errors, act on
matters to aid the appeal, and enforce its judgment, if the judgment has not
been stayed or superseded. See United States v. Flores, 683 F. App’x 281, 282
(5th Cir.), cert. denied, 138 S. Ct. 189 (2017); Ross v. Marshall, 426 F.3d 745,
751 (5th Cir. 2005). Here, the district court entered an amended judgment
nearly two months after Ruvalcava-Garza’s timely notice of appeal. Unless the




444 F.3d 391, 401 & n.7 (5th Cir. 2006) (observing that unpublished opinions issued in or
after 1996 may be persuasive authority).

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district court’s action in filing the amended judgment fits within one of the
limited exceptions, the district court erred.
      The district court indicated that it acted pursuant to Federal Rule of
Criminal Procedure 36. Rule 36 permits courts to correct clerical errors in a
judgment at any time. See FED. R. CRIM. P. 36. However, courts may not rely
on Rule 36 to alter the substance of the sentence orally pronounced. See United
States v. Spencer, 513 F.3d 490, 491–92 (5th Cir. 2008). Thus, it is not the
proper vehicle for amending a judgment to reflect the court’s original
sentencing intentions when those intentions were not pronounced at the
sentencing hearing. See id.; United States v. Burd, 86 F.3d 285, 288 (2d Cir.
1996). Rather, it is generally used to correct the written judgment when it does
not conform to the court’s oral pronouncement. See Spencer, 513 F.3d at 491–
92. Accordingly, the district did not have authority under Rule 36 to enter an
amended judgment, increasing Ruvalcava-Garza’s supervised release term
from the term pronounced at sentencing. See id.
      Likewise, the district court did not have authority under Rule 35(a) to
enter an amended judgment.            Rule 35(a) permits the correction of
“arithmetical, technical, or other clear error.” FED. R. CRIM. P. 35(a). Such
corrections, however, must be made within fourteen days after sentencing. See
id. Here, the district court entered its amended judgment nearly two months
after sentencing.
      Finally, in entering its amended judgment, the district court did not seek
to aid the appeal or enforce its original written judgment. Accordingly, the
district court erred in entering an amended judgment.
                                CONCLUSION
      For the reasons stated herein, we VACATE the district court’s June 7,
2017 Amended Judgment.


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