United States v. Donald Hathorn

Case: 13-60118 Document: 00512495746 Page: 1 Date Filed: 01/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60118 January 9, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONALD LEE HATHORN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:09-CR-25-1
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM: *
Donald Lee Hathorn, federal prisoner # 10194-043, pleaded guilty to one
count of possession of a controlled substance with intent to distribute and was
sentenced to 106 months of imprisonment. Hathorn moved for a reduction of
his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the Fair Sentencing
Act of 2010. The district court granted the motion and reduced his sentence to
89 months. After an untimely appeal, Hathorn moved the district court to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60118 Document: 00512495746 Page: 2 Date Filed: 01/10/2014
No. 13-60118
correct a clerical error under Federal Rule of Criminal Procedure 36. Hathorn
asserted that the amended presentence report incorrectly calculated his new
guidelines range and that the district court failed to take the correct range into
account in reducing his sentence under § 3582. The district court denied the
motion as being without merit and untimely. The district court denied leave
to proceed in forma pauperis (IFP) on appeal and certified that the appeal was
not taken in good faith.
Rule 36 provides that the 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
occurs when the court intends to do one thing, but through clerical mistake or
oversight does another. United States v. Buendia-Rangel, 553 F.3d 378, 379
(5th Cir. 2008). The district court did not abuse its discretion in denying
Hathorn’s Rule 36 motion. See United States v. Mueller, 168 F.3d 186, 188 (5th
Cir. 1999). Accordingly, we deny Hathorn’s motion for leave to appeal IFP, and
we dismiss the appeal as frivolous. Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
MOTION DENIED; APPEAL DISMISSED.
2