United States v. Terrence Millsaps , 489 F. App'x 765 ( 2012 )

Case: 12-30281 Document: 00512018780 Page: 1 Date Filed: 10/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 12, 2012
No. 12-30281
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TERRENCE MILLSAPS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:95-CR-377-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
In 1996, Terrence Millsaps, federal prisoner # 83445-012, was convicted
of conspiring to possess with intent to distribute and attempting to possess with
intent to distribute a quantity of cocaine, and he was sentenced as a career
offender to 450 months of imprisonment. He now appeals the district court’s
decision to deny his motion for leave to file a notice under Federal Rule of
Criminal Procedure 36 to correct a purported clerical error.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-30281 Document: 00512018780 Page: 2 Date Filed: 10/12/2012
No. 12-30281
A district 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. A clerical error arises where “the
court intended one thing but by merely clerical mistake or oversight did
another.” United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir.2008)
(internal quotation marks and citations omitted). Millsaps’s argument that the
court miscalculated his sentence because it determined the drug quantity using
the preponderance of the evidence standard constitutes a substantive challenge
to his sentence and thus is outside the scope of Rule 36. See United States v.
Spencer, 513 F.3d 490, 491-92 (5th Cir. 2008). Moreover, his motion amounted
to a collateral attack on his original sentence that must be brought in a motion
under 28 U.S.C. § 2255. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
Because Millsaps previously challenged his sentence under § 2255, he must first
apply to this court for authorization before he may file a successive § 2255
motion. See 28 U.S.C. §§ 2244(a), § 2255(h).
Millsaps’s appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2;
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). His motion for further
relief is DENIED. We once again WARN Millsaps that further frivolous filings
may result in the imposition of sanctions, including dismissal, monetary
penalties, and restrictions on his ability to file appeals in this court and actions
in any court subject to this court’s jurisdiction.
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