United States v. Sanchez-Sanchez ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-6-2005
USA v. Sanchez-Sanchez
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2066
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Recommended Citation
"USA v. Sanchez-Sanchez" (2005). 2005 Decisions. Paper 571.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/571
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CPS-309 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-2066
________________
UNITED STATES OF AMERICA
v.
DOMINGO SANCHEZ-SANCHEZ,
a/k/a RAFAEL BATISTA,
a/k/a PASAL
Domingo Sanchez-Sanchez,
Appellant
________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 98-cr-0020)
District Judge: Honorable Ronald L. Buckwalter
________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
July 21, 2005
Before: ALITO, MCKEE and AMBRO, Circuit Judges
(Filed: September 6, 2005)
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OPINION
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PER CURIAM
Domingo Sanchez-Sanchez appeals the District Court’s order granting his motion
filed under Rule 36 of the Federal Rules of Criminal Procedure. In June 1998, Sanchez-
Sanchez pled guilty to several counts of drug distribution and firearm charges. In
February 1999, the District Court imposed an aggregated sentence of 292 months. On
March 18, 2005, Sanchez-Sanchez filed his Rule 36 motion and argued that the docket
entries reflected that he was only sentenced to an aggregated sentence of 172 months.
The District Court granted the motion and directed the Clerk to correct the docket entries
to show the correct sentences on each count. Sanchez-Sanchez filed a timely notice of
appeal, and we have jurisdiction under 28 U.S.C. § 1291.
Sanchez-Sanchez argues on appeal that the District Court entered a sentence more
onerous than that which he believes he was given at sentencing. At his sentencing, the
District Court pronounced Sanchez-Sanchez’s sentence as 292 months. The District
Court stated in the criminal judgment that the sentence was 292 months. In our opinion
affirming the conviction and sentence, we stated that Sanchez-Sanchez was sentenced to
292 months. In his motion filed pursuant to 28 U.S.C. § 2255, Sanchez-Sanchez stated
that he was sentenced to 292 months. In denying that § 2255 motion, the District Court
noted that Sanchez-Sanchez was sentenced to 292 months. For Sanchez-Sanchez to now
argue that he believes his sentence is lower is disingenuous.
Sanchez-Sanchez contends that it was his understanding that he was sentenced to
120 months on counts one and eleven (distribution of cocaine base) to be served
concurrently. However, the criminal judgment and the transcript of sentencing show that
Sanchez-Sanchez was sentenced to 240 months on counts one and eleven with these
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sentences running concurrently to each other. He was also sentenced to 52 months on
count twelve (distribution of heroin) to run consecutive to the sentence at count one. On
counts sixteen and eighteen (firearm charges), Sanchez-Sanchez was sentenced to 120
months on each count to run concurrently to the sentence at count one. Thus, this
argument is also without merit.
Sanchez-Sanchez further asserts that the granting of the Rule 36 motion entitles
him to review of his sentence under United States v. Booker, 125 S.Ct. 738 (2005).
However, the purpose of Rule 36 is to correct clerical errors. Neither the sentence nor the
criminal judgment has been amended, and Sanchez-Sanchez has not been resentenced;
only the docket entries were corrected. This does not entitle Sanchez-Sanchez to further
appellate review of his sentence. An application to file a second or successive § 2255
motion would be the proper vehicle for such an argument; however, unless Booker is
made retroactive to cases on collateral review by the Supreme Court, such an application
is without merit. See In re Olopade, 403 F. 3d 159 (3d. Cir. 2005).
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
the District Court, we will summarily affirm the District Court’s order. See Third Circuit
I.O.P. 10.6. Sanchez-Sanchez’s motion for the appointment of counsel is denied.
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