United States v. Luis H. Cano, 558 F. App'x 936

Luis Cano was convicted on multiple drug and money-laundering counts in 1997; jury verdicts showed convictions on Counts 1–26, 28–31, and 38–76 but the original judgment erroneously listed all 76 counts and a $3,800 special assessment.
On direct appeal this Court vacated Count 13 and otherwise affirmed convictions and sentences; Cano later filed an unsuccessful § 2255 motion.
In 2012 the district court, on the government’s Rule 36 filing (and at Cano’s prior request concerning counts), entered an amended judgment correcting the counts, lowering the assessment, and adding a reference to a previously omitted forfeiture order.
Cano appealed the November 14, 2012 order and amended judgment, raising multiple challenges including that Rule 36 was misapplied, the forfeiture reference was improper, and he was denied counsel/presence during the amendment.
The Eleventh Circuit reviewed Rule 36 de novo, treated several of Cano’s claims as second or successive § 2255 challenges, and rejected Cano’s challenges to the Rule 36 corrections and to the inclusion of the forfeiture reference.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 36 may be used to correct counts of conviction	Cano: district court made substantive changes; required more than clerical correction	Gov: changes merely conformed the judgment to jury verdict and this Court’s mandate	Court: Amendment of counts was clerical and permissible under Rule 36; affirmed
Whether Rule 36 may add a reference to a forfeiture order omitted from original judgment	Cano: adding forfeiture reference via Rule 36 was improper and retroactive	Gov: Rule 32.2(b)(4)(B) permits correction under Rule 36; Cano knew of forfeiture at sentencing	Court: Inclusion allowed under amended Rule 32.2; no Ex Post Facto violation; affirmed
Whether Cano was entitled to counsel or presence for the amendment proceedings	Cano: denial of counsel/presence violated due process because amendment was a resentencing	Gov: corrections were ministerial; no resentencing occurred	Court: Corrections were ministerial; absence of counsel/presence was not prejudicial; affirmed
Whether remaining claims may proceed on direct appeal or are successive § 2255 motions	Cano: sought district-court consideration of other substantive motions despite pending appeal	Gov: those claims are collateral attacks requiring § 2255 procedure and prior authorization	Court: Remaining five arguments are second/successive § 2255 claims; dismissed for lack of authorization

United States v. Portillo, 363 F.3d 1161 (11th Cir.) (Rule 36 cannot effect substantive sentencing changes)
United States v. Corona, 885 F.2d 766 (11th Cir.) (upholding conviction where sufficient predicate acts remain)
United States v. Pease, 331 F.3d 809 (11th Cir.) (pre-amendment limitation on adding forfeiture to judgment via Rule 36)
Garner v. Jones, 529 U.S. 244 (U.S.) (purpose of Ex Post Facto Clause)
Collins v. Youngblood, 497 U.S. 37 (U.S.) (scope of Ex Post Facto Clause analysis)
Hall v. Moore, 253 F.3d 624 (11th Cir.) (absence of counsel for ministerial sentencing acts not prejudicial)
United States v. Jackson, 923 F.2d 1494 (11th Cir.) (defendant presence not required for non-onerous sentence corrections)
Sawyer v. Holder, 326 F.3d 1363 (11th Cir.) (collateral challenges to conviction belong in § 2255)
United States v. Holt, 417 F.3d 1172 (11th Cir.) (district court lacks jurisdiction over unauthorized second/successive § 2255)
Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348 (11th Cir.) (successive collateral claims precluded when previously adjudicated)