Case: 15-40995      Document: 00513830429         Page: 1    Date Filed: 01/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-40995                               FILED
                                                                          January 11, 2017

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

MARTIN PODIO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:10-CR-6-1


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Martin Podio pleaded guilty in 2010 to a single count of possession of
counterfeit access devices affecting interstate commerce. He was sentenced to
30 months in prison, three years of supervised release, and restitution of
$24,797.87, jointly and severally with his codefendants Julio Jomarron
($24,797.87) and Rey Jomarron ($13,185.92). After revocation, the joint and




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40995
several designation of the restitution from the judgment of conviction was
omitted. Podio appeals the revocation order and asks for a correction.
                                 DISCUSSION
      Specifically, Podio asks that this matter be remanded to the district court
for correction of the written revocation judgment under Rule 36 of the Federal
Rules of Criminal Procedure because the judgment does not accurately reflect
the restitution order with regard to the joint and several liability. He further
asserts that the nature of the clerical error – omission of the joint and several
liability specification – was discoverable only upon issuance of the written
judgment, and, thus, he did not have an opportunity to object prior to its entry.
      The Government asserts that the district court did not orally pronounce
at either the original sentencing hearing or in the present revocation hearing
that Podio was jointly and severally liable along with his codefendants for
payment of restitution. Further, the Government argues that, because Podio
failed to challenge the omission of a joint and several liability order at the
revocation hearing or in post-judgment motions, plain error review applies and
that Podio fails to establish plain error.
      The Government relies on case law for the proposition that, where there
is a conflict between the oral pronouncement and the written judgment, the
oral pronouncement prevails. See United States v. English, 

, 276
(5th Cir. 2005); United States v. Martinez, 

, 942 (5th Cir. 2001).
The Government also argues that the written judgment on Podio’s first
revocation, which he did not appeal, did not reflect that the restitution was to
be joint and several.
      While Podio could have sought to correct the judgment in his post-
judgment Rule 35 motion, Rule 36 provides that a district court “may at any
time correct a clerical error in a judgment, order, or other part of the record, or
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                                      No. 15-40995
correct an error in the record arising from oversight or omission.” Fed. R. Crim.
P. 36. Further, Rule 36 is an exception to the general rule of divesting district
court jurisdiction on appeal. United States v. McGee, 

, 273 (7th
Cir. 1992), abrogated on other grounds by Johnson v. United States, 

(2000); cf. United States v. Mackay, 

, 196-200 (5th Cir. 2014)
(reversing denial of Rule 36 motion to correct clerical error 13 years after
judgment).
       This court has previously reviewed clerical errors for the first time on
appeal and properly remanded for correction of the errors without resolving
the standard of review. See United States v. Nagin, 

, 353-54 (5th
Cir. 2016); United States v. Powell, 

, 371-72 (5th Cir. 2003);

.
       The district court clearly ordered joint and several liability for restitution
for Podio and his codefendants. The written judgments of conviction for all
three defendants indicated the same thing. 1 Podio’s judgment was affirmed by
this court on appeal. United States v. Podio, 432 F. App’x 308 (5th Cir. 2011).
No matter what transpired during the first revocation, Podio’s final judgment
of conviction, as affirmed by this court, designates joint and several liability.
Under Rule 36, he would be able to get that initial revocation judgment
corrected even now if it were still in effect. Regardless, the prior revocation
order is of no consequence since we are here on a different revocation.
       Despite the fact that the final and binding criminal judgment designates
joint and several liability, the revocation order restates or amends the terms
of that judgment while omitting necessary information.                 Although the re-


       1If the Government disputed whether the district court orally pronounced the joint
and several liability designation, then it had the opportunity to raise that issue on direct
appeal.
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                                      No. 15-40995
imposition of restitution after revocation is not a new judgment, the terms are
altered here.       The district court specified Podio’s remaining liability on
restitution of $23,172.97 2 and ordered him to pay it in equal monthly
installments of $2,106.63 over a period of 11 months. However, the district
court’s inclusion of this fixed payment amount and failure to state that this
remaining liability is joint and several to the obligations of Podio’s
codefendants contradicts the final judgment of conviction. Thus, a correction
is warranted.
      This court has previously remanded similar cases for correction of errors.
See, e.g., Martinez, 

. Because of the conflict between the original
judgment of conviction and the revocation order here, we REMAND for
correction of error.




      2   Assuming this amount is correct.
                                             4