United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING RULE 36 MOTION)
E. HUDSON UNITED STATES DISTRICT JUDGE.
Marloe Vanderhorst, a federal inmate proceeding with counsel,
has submitted a Motion for Relief Pursuant to Federal Rule of
Criminal Procedure 36 ("Rule 36 Motion, " ECF No.
29). Vanderhorst requests that the Court "correct a
clerical error that appeared in his Pre-Sentence
Investigative Report [("PSR")] and was used in
determining his sentence." (Id. at 1.)
Specifically, Vanderhorst asserts that the PSR contains
inaccurate descriptions of a 1991 North Carolina drug offense
(hereinafter, "North Carolina Drug Conspiracy
Offense") and that said offense was improperly used as a
predicate for imposing a career offender enhancement.
Vanderhorst further requests that the Court "order a
recalculation of his PSR guidelines range and re-sentence
[him] based on the corrected information." (Mem. Supp.
Rule 36 Mot. 5, ECF No. 30.) For the reasons set forth below,
the Rule 36 Motion will be denied.
Sentencing and the Presentence Investigation Report
September 4, 2007, Vanderhorst pled guilty to conspiracy to
distribute and possess with the intent to distribute five
kilograms or more of cocaine hydrochloride. (Plea Agreement
1, ECF 14.) On December 7, 2007, the Court entered judgment
against Vanderhorst and sentenced him to 327 months of
imprisonment. (J. 2, ECF No. 21.) Vanderhorst's sentence
was based in part on the Probation Officer's finding that
Vanderhorst "qualified] for a sentence enhancement under
the Career Offender provision, as defined in § 4B 1.1,
of the Sentencing Guidelines." (PSR¶ 28.) The PSR
indicated that Vanderhorst qualified for the career offender
enhancement because of his " 1991 conviction in Wake
County (NC) Superior Court for Trafficking in Heroin by
Possession, Trafficking in Heroin by Transportation and
Conspiracy to Sell or Deliver Heroin; and
the 1997 conviction in Bergen County (NJ) Superior Court for
Distribution of a Controlled Substance."
the PSR provided the following description of
Vanderhorst's three North Carolina drug convictions:
1) Trafficking Heroin by Possession Dkt#91CRS36802
2) Trafficking Heroin by Transportation Dkt#91CRS36803
3) Conspiracy to Sell and Deliver Cocaine Dkt#91CRS36804
The Correct Description of Vanderhorst's North Carolina
Drug Conspiracy Offense
Rule 36 Motion, Vanderhorst contends that he was charged with
Conspiracy to Traffick Heroin by Transportation, not
Conspiracy to Sell and Deliver Cocaine. (Mem. Supp. Rule 36
record, as supplemented by Vanderhorst, reflects that in
North Carolina, in 1991, a grand jury indicted Vanderhorst as
a) 91 CRS 36802 charged Mr. Vanderhort (sic) with
"traffick[ing] by possession more than 14 gram(s) but
less than 28 grams of ...