[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-14896                ELEVENTH CIRCUIT
                                                              JUNE 1, 2011
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                   D. C. Docket No. 02-00004-CR-WLS-6

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MORRIS DEWAYNE GREEN,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                               (June 1, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Morris Dewayne Green appeals from the amended judgment entered in his
criminal case under Federal Rule of Criminal Procedure 36. Green argues that the

district court denied him due process by not providing him with notice that the

amended judgment was being entered and an opportunity to be heard before it was.

He also claims the amendments substantively altered his sentence. Because we

conclude that the amendments to the judgment were merely clerical or intended to

conform the written judgment to the court’s oral sentence, we affirm. But we

nonetheless remand for further corrections because the amended judgment contains

clerical errors as well.

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

Portillo, 

, 1164 (11th Cir. 2004). Rule 36 provides that, after giving

any notice it considers appropriate, a district court “may at any time correct a

clerical error in a judgment.” Fed. R. Crim. P. 36. Under the rule, a district court

may amend the written judgment to conform it to the oral pronouncement of

sentence. 

–65. Rule 36 may not, however, be used to

make any substantive alteration to a sentence. 

       Most of the amendments Green challenges are merely differences in the

language between the judgment form that was used at the time of Green’s

sentencing and the newer, revised form that was used at the time the district court

issued the amended judgment. For example, the first amendment Green challenges



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clarified that the district court would determine whether Green needed to undergo

periodic drug tests after his release. Whether the phrase “as determined by the

court” was included in the original judgment, the district court had the authority to

determine if Green needed to be drug tested periodically. Green next challenges

the amendment that changes the time in which he must notify the probation office

that his residence or employment has changed from “ten days before the change”

to “at least ten days before the change.” Neither of these differences substantively

changed Green’s sentence.

      Green also argues that the district court improperly checked the box

indicating that he was required to pay restitution on the amended judgment where

that box was left unchecked on the original judgment form. But Green does not

dispute that restitution was imposed at his oral sentence. Accordingly, this

correction was the sort of clerical alteration intended to bring the written judgment

into conformity with the oral sentence permitted by Rule 36. 

      Finally, Green argues that these changes constituted a resentencing, which

would have required notice and a right to be heard before the court could impose

sentence. See Fed. R. Crim. P. 43. In Portillo, we concluded that clerical

alterations to a judgment, like those here, are not a resentencing and thus do not

implicate due process concerns or the protections of Federal Rule of Criminal



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Procedure 

. Thus, due process did not require Green’s

presence when the court corrected the judgment. 

he entitled to Rule

43’s procedures. Accordingly, we affirm Green’s sentence.

      But because the amended judgment contains several new clerical errors

itself, we remand for the limited purpose of correcting those errors. The errors are:

(1) the amended judgment lists 18 U.S.C. § 3664(I) as the statute that governs

Green’s restitution payments, but it should be 18 U.S.C. § 3664(i); (2) the amended

judgment transposed two numbers in the claim number of the restitution payee; (3)

the amended judgment does not reflect that Green’s sentence is consecutive to an

unrelated sentence that Green is currently serving. The first two clerical errors

should be corrected. The last error should also be corrected to bring the written

judgment into accord with Green’s oral sentence.

AFFIRMED WITH LIMITED REMAND.




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