United States v. Keenan Aubrey Davis, 2016 U.S. App. LEXIS 20904

Davis and Coffee were tried for a series of retail robberies; the superseding indictment charged six robberies under 18 U.S.C. § 1951 and two firearm counts under 18 U.S.C. § 924(c)(1)(A) (Counts 3 and 7).
Trial evidence showed multiple robberies where shotguns/replica guns were used; several co‑defendants pled guilty and testified for the government.
The jury was instructed correctly and repeatedly told that Counts 3 and 7 were separate § 924(c) firearm offenses distinct from the § 1951 robbery counts; jurors received the indictment and written instructions.
The verdict forms (submitted jointly by defense and government) incorrectly labeled Count 7 as “robbery, in violation of 18 U.S.C. § 924(c)(1)(A)” (statutory citation was correct); neither parties, court, nor probation noticed the error until months later.
The written judgments mirrored the erroneous verdict form description. The district court, after notice and over defendants’ objections, amended the judgments under Fed. R. Crim. P. 36 to correct the clerical error and reflect Count 7 as a § 924(c) conviction. Defendants appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 36 amendment was proper	District court may correct clerical errors; review de novo	Amending judgment converted a verdict to a different substantive crime and prejudiced defendants by exposing them to mandatory consecutive § 924(c) sentences	Affirmed: Rule 36 correction was proper because error was clerical and did not prejudice defendants
Whether jury was confused by verdict form error	Jury instructions, indictment, and counsel’s arguments made § 924(c) counts clear	Error shows possible jury confusion; original (erroneous) judgment should stand as reflecting what jury found	Court presumed jurors were not confused given repeated correct instruction, materials, and jury question about § 924 possession showed understanding
Whether amendment was a substantive alteration barred by Rule 36	Rule 36 cannot substantively alter sentence but can fix clerical mistakes that do not prejudice defendant	Amending to change the named offense substantively increased punishment and thus prejudiced defendants	No prejudice: evidence established firearms were used at Sweetbay, so jury necessarily found § 924(c) elements; amendment did not increase exposure beyond jury’s finding
Standard of review for Rule 36 correction	District court’s application of Rule 36 reviewed de novo	—	Court applied de novo review and found amendment lawful

United States v. Portillo, 363 F.3d 1161 (11th Cir. 2004) (Rule 36 cannot make substantive sentence alterations; clerical corrections allowed)
United States v. Diaz, 190 F.3d 1247 (11th Cir. 1999) (clerical errors in judgments may be corrected where correction causes no reversible prejudice)
United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002) (definition of "in furtherance" for § 924(c) requires that firearm helped advance the underlying crime)
Deal v. United States, 508 U.S. 129 (Sup. Ct. 1993) (§ 924(c) sentencing principles cited for stacking consecutive sentences)
United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998) (failure to object to verdict form reviewed for plain error)