United States v. Byrd ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-20912
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TRAVIS BYRD
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-339-1
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Travis Byrd, federal prisoner # 88313-079, appeals the denial of his FED.
R. CRIM. P. 36 motion, in which he challenged the sentence imposed following his
jury conviction for possession with intent to distribute cocaine and aiding and
abetting. Byrd argues that the sentencing court made a clerical error when it
included in his drug quantity calculation the 1.9 kilograms of cocaine found in
possession of his co-defendant absent evidence of a conspiracy or partnership.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-20912
Byrd’s argument constitutes a substantive challenge to his sentence and
is therefore not cognizable in a Rule 36 motion, which is a vehicle reserved for
correcting only errors that are clerical in nature or that arise from oversight or
omission. See FED. R. CRIM. P. 36; United States v. Spencer, 513 F.3d 490, 491-92
(5th Cir. 2008); United States v. Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995).
He has therefore shown no error on the part of the district court in denying his
request for Rule 36 relief.
AFFIRMED.
2