United States v. Derry Bradford Grier, A/K/A Crow, A/K/A Derry Grier Bradford , 70 F.3d 1263 ( 1995 )

70 F.3d 1263

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Derry Bradford GRIER, a/k/a Crow, a/k/a Derry Grier
Bradford, Defendant-Appellant.

No. 95-6945.

United States Court of Appeals, Fourth Circuit.

Submitted: November 16, 1995.
Decided: December 5, 1995.

Derry Bradford Grier, Appellant Pro Se. Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte, NC, for Appellee.

Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Appellant appeals from the district court's order denying his "Motion for Clarification under 18 U.S.C. 36 of F.R. Cr. P." We have reviewed the record and the district court's opinion and find no reversible error.

2

Fed.R.Crim.P. 36 permits the correction of "clerical mistakes." Such a rule is inapplicable to the present case in which Appellant contends that the district court misapplied the sentencing guidelines. Instead, Appellant's petition is properly construed as a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255 (1988).

3

Appellant did not appeal his sentence. Nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976); United States v. Emanuel, 869 F.2d 795, 796 (4th Cir.1989). A district court's technical application of the sentencing guidelines is a nonconstitutional claim. See United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Because Appellant's claim alleges nonconstitutional error and could properly have been raised on appeal, his claim has been waived.

4

Accordingly, we affirm the order of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED