United States v. Andre Williams ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3570
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE WILLIAMS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 95 CR 242 — Robert W. Gettleman, Judge.
____________________
SUBMITTED JANUARY 26, 2015 — DECIDED JANUARY 29, 2015
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
PER CURIAM. Andre Williams’s convictions and sentences
(totaling 480 months) were affirmed almost 15 years ago.
United States v. Patterson, 215 F.3d 776 (7th Cir. 2000). He liti-
gated and lost a collateral attack under 28 U.S.C. §2255 but
continues to seek a lower sentence. His most recent request,
styled a “Motion to Correct Record”, was filed in the district
2 No. 14-3570
court last year. This motion asks the district judge to revise
the presentence report to show that he is not a career offend-
er and to resentence him accordingly. The United States op-
posed the motion on the ground that it is a disguised effort
to conduct a successive collateral attack without this court’s
permission, which §2255(h) requires. The district court de-
nied the motion for lack of jurisdiction.
Williams contends on appeal that Fed. R. Crim. P. 36 al-
lows courts to correct clerical errors at any time, but his sen-
tence is not a clerical error; the judgment accurately carries
out the district judge’s decision. Rule 36 permits a district
court to ensure that the record accurately reflects judicial de-
cisions but does not authorize a challenge to the substance of
those decisions. See United States v. McHugh, 528 F.3d 538
(7th Cir. 2008). Nor does the presentence report contain a
clerical error. Whether the author of the report accurately
understood the nature of one of Williams’s older convictions
(which affects whether he is a career offender) is a substan-
tive matter. Defendants who disagree with the contents of a
PSR must object before or at sentencing; only if a timely ob-
jection is made must a district judge state on the record (if
the issue affects the sentence) whether the PSR is correct.
Fed. R. Crim. P. 32(f)(1), (i)(3). Williams raised the issue indi-
rectly at sentencing but did not ask for a correction under
Rule 32 and did not pursue the matter on appeal. It is far too
late to revisit this subject.
A request for a lower sentence, not authorized by a retro-
active change in the Sentencing Guidelines, is treated as a
motion under §2255 if it is within the scope of §2255(a), no
matter what caption is on the document. See Melton v. United
States, 359 F.3d 855 (7th Cir. 2004). The district court properly
No. 14-3570 3
treated this as a §2255 motion and dismissed it for want of
jurisdiction.
In order to appeal from the denial of a motion under
§2255, Williams needs a certificate of appealability, which he
has not sought. His brief likewise does not identify a sub-
stantial constitutional question, which is required for a cer-
tificate. 28 U.S.C. §2253(c)(2). We do not perceive such an is-
sue. So we decline to issue a certificate of appealability and
dismiss the appeal.