United States v. Hernandez: Narrowing Remand under Rule 36 to True Clerical Errors

1. Introduction

In United States v. Hernandez, No. 24-11053 (5th Cir. Aug. 1, 2025), the United States Court of Appeals for the Fifth Circuit was asked to decide whether three alleged “clerical errors” in the district court’s written judgment warranted remand. Mike Hernandez, having pled guilty to distributing at least 40 grams of fentanyl, challenged (1) the offense end-date, (2) the wording of the offense of conviction, and (3) omission of the agreed disposition contemplated by Rule 11(c)(4). The appellate court affirmed the conviction and sentence, but remanded solely to correct the offense end-date—thus reinforcing the boundary between genuine clerical mistakes that fall within Federal Rule of Criminal Procedure 36 and substantive defects that must be raised (and preserved) on the merits.

2. Summary of the Judgment

• Affirmed – The Fifth Circuit upheld the conviction and the 160-month, four-year-supervised-release sentence.
• Limited Remand – Under Rule 36, the panel sent the case back only to change the offense’s end date from May 23 to April 22, 2024, aligning the written judgment with undisputed record evidence.
• No Other Relief – The court rejected Hernandez’s claims that (a) the judgment “misstated” the offense because it omitted “mixture or substance” language and (b) failed to include the “agreed disposition” required by Rule 11(c)(4).

3. Analysis

3.1 Precedents Cited

The opinion situates its holding within a line of Fifth Circuit and Supreme Court cases addressing clerical errors and the standard of review:

• United States v. Steen, 55 F.3d 1022 (5th Cir. 1995) – Defines a clerical error as one where “the court intended one thing but by merely clerical mistake or oversight did another.”
• United States v. Cooper, 979 F.3d 1084 (5th Cir. 2020) – Permits remand when the error “falls within the literal reach of Rule 36” and comports with the ceiling set by Ramirez-Gonzalez.
• United States v. Ramirez-Gonzalez, 840 F.3d 240 (5th Cir. 2016) – Clarifies that Rule 36 cannot be used to make substantive changes to the judgment.
• United States v. Belmontes, 807 F. App’x 292 (5th Cir. 2020) and United States v. Martin, 651 F. App’x 265 (5th Cir. 2016) – Illustrate typical housekeeping corrections (e.g., typos) permissible under Rule 36.
• Plain-error lineage – Atkinson, Puckett, Delgado, and Suarez guide the court’s refusal to correct unpreserved, non-clerical errors absent plain error.

3.2 Legal Reasoning

The panel’s reasoning proceeds in three discrete steps—mirroring each alleged error:

1. Offense End-Date (Granted)
   • The record (factual resume, PSR, government concession) unequivocally fixed April 22, 2024, as the termination date. • As both parties agreed and the mistake was purely ministerial, the error is the paradigmatic Rule 36 scenario. • Relying on Cooper, the court held remand appropriate.
2. “Misstated” Offense Description (Rejected)
   • Hernandez argued the judgment should recite that the fentanyl was part of a “mixture or substance.” • The panel reviewed for plain error because the objection had not been made below. • Because the indictment, plea agreement, PSR, and in-court colloquy all identified “Distribution and Possession with Intent to Distribute 40 Grams or More of Fentanyl,” the written judgment tracked the actual conviction. • Any additional drug-mixture verbiage was neither required nor contemplated; therefore no clear or obvious error existed.
3. Rule 11(c)(4) “Agreed Disposition” (Rejected)
   • Rule 11(c)(4) obliges the court to state in open court that the agreed disposition will be incorporated into the judgment. • The district judge: – announced acceptance of the plea agreement; – granted the government’s motion to dismiss the remaining counts; and – reflected that dismissal in the written judgment. • Accordingly, the requirement was satisfied, and no correction was necessary.

3.3 Potential Impact

• Procedural Efficiency – By cabining Rule 36 to true clerical lapses, the decision discourages strategic post-sentencing attempts to re-litigate substantive matters under the guise of “clerical error.”
• Sentencing Integrity – Clarifies for district judges the necessity of synonymy between oral pronouncements, PSRs, and written judgments, especially regarding offense dates that affect restitution windows, statute-of-limitations analyses, and BOP computations.
• Plea Agreement Practice – Reinforces that dismissal of counts pursuant to Rule 11(c)(1)(A) is itself an “agreed disposition” and need not be recited verbatim in the judgment so long as the judgment reflects the dismissal.
• Appellate Preservation – Signals defendants that failure to raise non-clerical objections in the district court converts them into steep plain-error challenges on appeal.

4. Complex Concepts Simplified

• Rule 36 (Clerical Error Rule) – Think of this as the court’s eraser: it can fix typos, wrong dates, or other ministerial mistakes, but cannot change the substance of a judgment.
• Presentence Report (PSR) – A confidential report the Probation Office prepares to inform the judge’s sentencing decision; it summarizes the offense, the defendant’s background, and guideline calculations.
• Plain Error Review – A demanding appellate standard requiring (1) a clear error, (2) that is obvious, (3) affecting substantial rights, and (4) seriously impugning the fairness or integrity of the proceedings.
• Rule 11(c) Plea Agreements – Under 11(c)(1)(A) the government can agree to drop counts; under 11(c)(1)(C) the parties may stipulate a specific sentence; Rule 11(c)(4) instructs the judge to announce that such dispositions will appear in the judgment once the plea is accepted.
• Pinkerton Liability – A doctrine that makes a conspirator liable for substantive offenses committed by co-conspirators if reasonably foreseeable; here mentioned in the indictment but ultimately not decisive to the appeal.

5. Conclusion

United States v. Hernandez is less about fentanyl distribution than about the procedural housekeeping that ensures a criminal judgment faithfully mirrors the record. By granting a pinpoint remand solely to amend an offense date, while refusing to re-open the substance of the conviction or the Rule 11 plea agreement, the Fifth Circuit has tightened the contours of Rule 36 practice. Going forward, litigants in the Fifth Circuit should:

1. Raise all substantive objections in the district court—failure to do so will trigger stringent plain-error review.
2. Use Rule 36 sparingly, limiting requests to indisputable clerical slips (dates, spelling, citations), not strategic reframing of the offense or sentence.
3. Ensure plea agreements and oral pronouncements address all agreed dispositions, so the written judgment can accurately – and succinctly – reflect them.

In the broader legal landscape, Hernandez serves as a subtle yet important precedent: a reminder that a court’s written word must reflect—nothing more, nothing less—its spoken decision, and that appellate courts will police that boundary with surgical precision.