United States District Court, W.D. Virginia, Roanoke Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant Parker's motion
to correct the presentence report pursuant to Rule 36 of the
Federal Rules of Criminal Procedure. The Government has not
responded, and the time for filing a response has expired.
Thus, the matter is ripe for adjudication.
April 10, 2000, Parker pleaded guilty to conspiracy to
distribute cocaine and cocaine base in violation of 21 U.S.C.
§ 846, and carrying a firearm during a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1). On July 12,
2000, I sentenced him to 420 months on the conspiracy charge
and 60 months on the firearm charge. On October 20, 2008, after a
motion pursuant to 18 U.S.C. § 3582(c)(2), I reduced
Parker's drug conspiracy sentence to 384 months.
November 9, 2017, Parker filed the present motion pursuant to
Rule 36 of the Federal Rules of Criminal Procedure.
Specifically, Parker moves for the correction of various
alleged clerical errors in his Presentence Investigation
Report (“PSR”), and a resentencing upon the
corrected record. He raises four claims:
1. the two-level “Victim-Related Adjustment” does
not apply because he was not convicted of crimes related to
the victim (PSR ¶ 43, ECF No. 531);
2. the PSR incorrectly enhanced his offense level by
including a juvenile offense committed in 1993 (PSR ¶
51, ECF No. 531);
3. the two-level enhancement for marijuana convictions was
incorrect (PSR ¶ 55, ECF No. 531); and
4. the “recency point” does not apply (PSR ¶
62, ECF No. 531).
Rule of Criminal Procedure 36 permits a court to “at
any time correct a clerical error in 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. District courts “employ Rule 36 to correct errors
that are clerical, rather than legal, in nature.”
See United States v. Postell, 412 Fed. App'x
568, 569 (4th Cir. 2011) (citing United States v.
Johnson, 571 F.3d 716, 718 (7th Cir. 2009)). Rule 36
motions “are not the proper vehicle for challenging the
substance of the information in a presentence report.”
United States v. Wilkes, 376 Fed. App'x 295, 296
(4th Cir. 2010). Instead, challenges to a PSR should be filed
with the trial court prior to sentencing and the court's
review of the factual statements within the PSR. Id.
(citing Fed. R. Crim. P. 32(f)) (asserting that “any
challenges to a PSR should be filed within fourteen days of
receiving the document”).
has not identified a clerical error in his PSR that may be
remedied under Rule 36. First, the PSR appears to provide
accurate information regarding his conduct and offense-level
computation. Claim 1 is without merit because Parker abducted
and tortured the victim during the course of, and in
furtherance of, the drug conspiracy. As to Claim 2, under
U.S.S.G. § 4A1.1(C), the offense level is enhanced if
the juvenile offense was committed within five years of the
commencement of the current offense. Parker committed the
juvenile offense in 1993, the torturing of the victim
occurred in 1995, and Parker's involvement in the overall
drug conspiracy began sometime before 1995. Therefore, Claim
2 is meritless. Claim 3 fails because whether the marijuana
convictions are counted as one “aggregate”
conviction under U.S.S.G. § 4A1.1(b) or two separate
convictions under U.S.S.G. § 4A1.1(c) is irrelevant.
Both sections result in a two-level offense enhancement.
Further, Claim 4 is without factual or legal justification;
the PSR correctly applied the recency amendment to
Parker's sentence. See U.S.S.G. App'x C
Supp., Amend. 742 (Nov. 1, 2010).
Claim 1 is not a clerical error, but a substantive objection
to the factual statements in his PSR. Since the time for
making such an objection has long since passed, I lack
jurisdiction to entertain Parker's motion to correct the
error. See United States v. Smith, 2016 5868090, at
*1 (W.D. N.C. Oct. 7, 2016) (citing United States v.
Davis, 2012 WL 8466126, at *1 (D. Md. Nov. 2, 2012)).
Defendant Parker's Rule 36 motion (dkt. 638) will be
denied. The Clerk is directed to send copies of this
memorandum opinion and accompanying order to ...