United States v. Antonio L. Scott , 327 F. App'x 850 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15257 ELEVENTH CIRCUIT
JUNE 2, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 97-00017-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO L. SCOTT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 2, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Antonio L. Scott, proceeding pro se, appeals the district court’s denial of his
pro se motion to correct his presentence investigation report (PSI), brought
pursuant to Fed. R. Crim. P. 36. On appeal, Scott argues the court erred in denying
his motion because the court had the authority to correct the PSI as part of the
record. Scott contends his PSI incorrectly provided that his offense involved crack
cocaine and miscalculated his criminal history score, and he asserts he was
sentenced based on this incorrect information. He also argues the court had the
power to correct clerical errors nunc pro tunc, and, even though he did not move to
have the PSI corrected nunc pro tunc, the court could grant him such relief as a pro
se movant. Furthermore, Scott contends the court erred because it had a “duty to
correct an obviously injurious error adverse” to him. Finally, he submits that the
inaccurate information has caused prison administrators to “erroneously classify
[his] custody classification form,” in violation of the Fifth Amendment.
Rule 36 of the Federal Rules of Criminal Procedure provides, “After giving
any notice it considers appropriate, the 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
recognized that Rule 36 only allows for the correction of “clerical mistakes” and
stated that “[i]t is clear in this Circuit that Rule 36 may not be used to make a
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substantive alteration to a criminal sentence.” United States v. Portillo, 363 F.3d
1161, 1164 (11th Cir. 2004) (internal quotations omitted). In Portillo, we held
Rule 36 was the proper vehicle for the district court to correct a judgment to
conform to the court’s oral pronouncement at sentencing regarding a restitution
order, noting that the mistake was clerical because it was “minor and mechanical”
and “did not fundamentally alter Portillo’s sentence.” Id. at 1165. In addition, we
concluded the district court’s deletion of a provision from the judgment that
Portillo pay restitution jointly and severally with his co-conspirator was proper
under Rule 36 because the court overlooked that the co-conspirator was not
ordered to pay restitution and the change did not make Portillo’s sentence more
onerous. Id.; cf. United States v. Whittington, 918 F.2d 149, 151 (11th Cir. 1990)
(holding Rule 36 was inapplicable when a court order “fundamentally changed the
sentence appellant had earlier received”).
Scott did not seek to correct a clerical error of the type that Rule 36 can be
used to correct, so the district court correctly determined he was not entitled to
relief under that rule. Additionally, it appears no other statute or rule could
provide Scott with the relief he sought. For example, even if the district court had
construed Scott’s motion as a motion for a modification of his sentence under Rule
35 or 18 U.S.C. § 3582, the government never filed a motion to reduce Scott’s
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sentence and Scott filed his own motion more than seven days after sentencing and
did not identify a retroactively applicable amendment to the Sentencing Guidelines
that would have the effect of lowering his Guidelines range. See United States v.
Morrison, 204 F.3d 1091, 1093 (11th Cir. 2000) (finding, in the context of an
earlier version of Rule 35(a), the seven-day limitation is a “jurisdictional
restriction”); 18 U.S.C. § 3582(c)(2)). Further, the district court would not have
had jurisdiction to construe Scott’s motion as one filed pursuant to 28 U.S.C.
§ 2255 because he previously filed a § 2255 motion that was denied with prejudice
and had not obtained authorization from this Court to file a second or successive
§ 2255 motion. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
Accordingly, we discern no reversible error and affirm.
AFFIRMED.
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