United States v. Falasha Ali ( 2016 )

FILED
NOT FOR PUBLICATION JUN 20 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10033
Plaintiff - Appellee, D.C. No. 2:06-cr-00160-RLH
v. MEMORANDUM*
FALASHA ALI,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Falasha Ali appeals pro se from the district court’s order denying his
“Motion for Correction of Clerical Error and Omission Pursuant to Federal Rule of
Criminal Procedure 36.” We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court correctly concluded that Federal Rule of Criminal
Procedure 36 does not permit Ali to challenge the criminal history calculation in
his presentence report or the court’s competency finding. See United States v.
Penna, 319 F.3d 509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for correcting
clerical mistakes but it may not be used to correct judicial errors in sentencing.”).
The district court also correctly concluded that it lacked authority to modify the
presentence report under Federal Rule of Criminal Procedure 32. See United
States v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989) (“[O]nce the district court
has imposed sentence, the court lacks jurisdiction under Rule 32 to hear challenges
to a presentence report.”).
The district court properly treated Ali’s remaining claims as a second or
successive motion under 28 U.S.C. § 2255, for which he did not obtain
preauthorization from this court, as required by Section 2255(h).
AFFIRMED.
2 15-10033