USA v. Miguel Anthony Molina

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12029
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANTHONY MOLINA,
a.k.a. Pito,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:10-cr-00407-JSM-AEP-1
USCA11 Case: 21-12029 Document: 31-1 Date Filed: 02/01/2023 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 21-12029
____________________
Before J ORDAN, B RANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Miguel Anthony Molina, a federal prisoner proceeding
pro
se, appeals the district court’s denial of his post-judgment motion
“to correct the docket” entry for his notice of appeal as to several
other substantive post-judgment motions and motion for reconsid-
eration of the denial of that motion. On appeal, Molina argues: (1)
that the district court’s mischaracterization of his notices of appeal
rendered the orders concerning his other substantive motions un-
appealable; and, (2) for the first time on appeal, that the district
court violated his statutory and constitutional due process rights.
After careful review, we affirm.
We review
de novo the district court’s application of Federal
Rule of Criminal Procedure 36.
United States v. Davis, 841 F.3d
1253, 1261 (11th Cir. 2016). Federal courts may “look behind the
label of a motion filed by a
pro se inmate and determine whether
the motion is, in effect, cognizable under a different remedial stat-
utory framework.”
United States v. Jordan, 915 F.2d 622, 624–25
(11th Cir. 1990). However, all litigants must comply with the ap-
plicable procedural rules, and we will not “serve as
de facto counsel
for a party or . . . rewrite an otherwise deficient pleading in order
to sustain an action.”
United States v. Padgett, 917 F.3d 1312, 1317
(11th Cir. 2019) (quotations omitted).
USCA11 Case: 21-12029 Document: 31-1 Date Filed: 02/01/2023 Page: 2 of 6

-- 2 of 6 --

21-12029 Opinion of the Court 3
In a criminal case, arguments brought for the first time on
appeal are reviewed for plain error only.
See United States v. An-
derson, 1 F.4th 1244, 1268 (11th Cir. 2021). To establish plain error,
the defendant must show (1) an error, (2) that is plain, and (3) that
affected his substantial rights.
United States v. Turner, 474 F.3d
1265, 1276 (11th Cir. 2007). If the defendant satisfies these condi-
tions, we may exercise our discretion to recognize the error only if
it seriously affects the fairness, integrity, or public reputation of ju-
dicial proceedings.
Id. We will not reverse when an error is harm-
less.
See United States v. Barton, 909 F.3d 1323, 1337 (11th Cir.
2018). An error is harmless unless “there is a reasonable likelihood
that [it] affected the defendant’s substantial rights.”
United States
v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).
Federal Rule of Appellate Procedure 3 requires that a party
seeking to appeal designate the “judgment -- or the appealable or-
der -- from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B).
We have held that when a notice of appeal designates the final, ap-
pealable order without identifying specific parts of that order for
appeal, we have “jurisdiction to review that order and any earlier
interlocutory orders that produced the judgment.”
Auto. Align-
ment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d
707, 724–25 (11th Cir. 2020).
Once a district court imposes a term of imprisonment, it
may not modify that sentence except under certain circumstances.
These circumstances include, in relevant part: (1) on remand after
an appeal, and (2) to reduce the sentence under the terms of 18
USCA11 Case: 21-12029 Document: 31-1 Date Filed: 02/01/2023 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 21-12029
U.S.C. § 3582(c) (governing motions for compassionate release,
substantial assistance, and sentencing ranges lowered after the de-
fendant’s sentencing by the Sentencing Commission).
United
States v. Diaz-Clark, 292 F.3d 1310, 1315–16 (11th Cir. 2002); 18
U.S.C. § 3582(b), (c).
Nevertheless, under Rule 36, a district court “may at any
time correct a clerical error in a judgment, order, or other part of
the record, or correct an error in the record arising from oversight
or omission.” Fed. R. Crim. P. 36. We have stressed that Rule 36
“may not be used to make a substantive alteration to a criminal
sentence.”
United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir.
2004) (quotations omitted). Instead, it is a remedy to correct errors
that are “minor and mechanical in nature.”
Id. at 1165.
Here, the record reflects that in April 2021, Molina filed a
notice of appeal (“Notice 1”), in which he designated the orders
denying his “motion to dismiss (DKT. 103) and motion to consider
(DKT. 107) the denial of the motion to dismiss” as the orders ap-
pealed from. The district court, however, docketed Notice 1 as a
notice of appeal from the orders denying his motion to dismiss,
and, citing the entry from doc. 110, “
reconsideration of its order
denying compassionate release.” The Clerk’s Office of our Court
docketed that as Appeal No. 21-11291. Subsequently, Molina filed
another notice of appeal (“Notice 2”) designating, for review, the
orders denying his “Compassionate Release (DKT. 105) [motion],
and [the] motion for reconsideration that was denied on April 14,
USCA11 Case: 21-12029 Document: 31-1 Date Filed: 02/01/2023 Page: 4 of 6

-- 4 of 6 --

21-12029 Opinion of the Court 5
2021 (DKT. 110).” The district court designated that document as
an “amended notice of appeal” in Appeal No. 21-11291.
Molina then moved the district court to correct the docket
entry reflecting his amended notice of appeal, claiming that the
court had essentially made the order denying his motion to dismiss
and any related orders unappealable. When the district court de-
nied his motion to correct the docket entry, Molina appealed again
to our Court, and our Clerk’s Office docketed that appeal as Appeal
No. 21-12029. Our Court later consolidated Molina’s two appeals
-- Nos. 21-11291 and 21-12029 -- into the one currently before us.
All of this is to say that the district court made a clerical error
in the designation of the docket entries corresponding to Molina’s
notices of appeal. Specifically, the district court designated the
docket entry of Notice 1 as appealing from the order denying the
motion to dismiss (which was correct), as well as the order denying
compassionate release (which was incorrect). However, based on
the actual notices of appeal he filed, Molina intended his first notice
of appeal to challenge the order denying the motion to dismiss and
any related orders, and he did not appeal from the order denying
compassionate release until he filed the
second notice of appeal.
On this record, the district court appears to have erred in denying
Molina’s motion “to correct the docket,” which was properly con-
strued as a motion to correct a clerical error under Rule 36.
See
Fed. R. Crim. P. 36;
Jordan, 915 F.2d at 624–25.
Nevertheless, any error the district court may have commit-
ted in denying Molina’s Rule 36 motion was harmless.
See
USCA11 Case: 21-12029 Document: 31-1 Date Filed: 02/01/2023 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 21-12029
Hawkins, 903 F.2d at 1493. For starters, Notices 1 and 2 -- as op-
posed to the text of the corresponding docket entries -- identified
the denial of his motion to dismiss and his motion to vacate and
the denial of his compassionate release motion and his motion for
reconsideration, respectively, as the orders appealed from.
See
Auto. Alignment & Body Serv., Inc., 953 F.3d at 724–25. Notably,
we obtain our jurisdiction according to Federal Rule of Appellate
Procedure 3 based on the designation of the notice of appeal by the
appellant, not the text of the corresponding docket entry.
See Fed.
R. App. P. 3(c)(1)(B). Thus, after the consolidation of Appeal Nos.
21-11291 and 21-12029, we have jurisdiction to consider Molina’s
arguments as to
all of the rulings he appealed from. As a result, any
clerical error concerning the text of the district court’s docket en-
tries was harmless.
Moreover, Molina did not argue before the district court
that clerical errors associated with his notices of appeal violated his
statutory and constitutional due process rights. This means that
we only review this argument -- made for the first time on appeal -
- for plain error.
See Anderson, 1 F.4th at 1268. But, because any
error made by the district court was harmless, we need not address
Molina’s statutory and due process claims on appeal.
Accordingly, we affirm the district court’s orders denying
Molina’s Rule 36 motion and for reconsideration of the denial of
that motion.
AFFIRMED.
USCA11 Case: 21-12029 Document: 31-1 Date Filed: 02/01/2023 Page: 6 of 6

-- 6 of 6 --