Opinion
CASE NO. 4:96-CR-65-CDL-MSH
08-12-2019
CURTIS EUGENE MITCHELL, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Presently pending before the Court is Petitioner's "Motion Pursuant to Fed. R. Crim. P. 36 to Correct the Record Arising from Oversight." (ECF No. 176). For the reasons explained below, it is recommended that the motion be denied.
BACKGROUND
On March 7, 1997, Petitioner was found guilty by jury trial of (1) conspiracy to possess with intent to distribute a schedule-II controlled substance, cocaine base, in violation of 21 U.S.C. § 846 (A)(1); (2) possession with intent to distribute a schedule-II controlled substance, cocaine base, in violation of 21 U.S.C. § 841 (a)(1); and (3) use and carrying of a firearm, during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924 (c)(1). Mot. to Correct J. 3, ECF No. 167. At his resentencing following remand from the Eleventh Circuit, the Government dismissed Count 1 and Petitioner was sentenced to 240 months imprisonment on Count 2 and 60 months imprisonment on Count 5, to be served consecutively to Count 2, for a total term of imprisonment of 300 months. Am. J. 2, ECF No. 67.
On May 16, 2000, Petitioner filed a motion to vacate sentence under 28 U.S.C. § 2255. Mot. to Vacate, ECF No. 61. Petitioner's motion was denied on September 22, 2000. Order, ECF No. 72. On March 1, 2000, the Eleventh Circuit declined to issue a certificate of appealability on Petitioner's appeal of this order. J. Den. Certificate of Appealability, ECF No. 82. Since that time, the Court has repeatedly denied Petitioner's attempts to alter or vacate his sentence. Specifically, the Court denied Petitioner's (1) Motion to Correct Judgment under Rule 60(b)(4) (ECF No. 104); (2) two Motions to Reduce Sentence under a retroactive application of the United States Sentencing Guidelines (ECF Nos. 116, 117); (3) Motion for Return of Property (ECF No. 141); (4) Motion to Reduce Sentence under the Fair Sentencing Act (ECF No. 148); and (5) Motion to Correct Judgment (ECF No. 173). On July 27, 2017, the Eleventh Circuit also denied Petitioner's application for leave to file a second or successive motion under § 2255. Order, ECF No. 175.
DISCUSSION
Petitioner contends that the Pre-Sentence Report ("PSR") incorrectly indicated that he had a 1994 prior sentence for possession of cocaine with intent to distribute. Mot. to Correct Record, Attach. 2 at 1-3, ECF No. 176-2. The PSR indicates that that "adjudication [was] withheld" on the 1994 charge. Id. at 2. Petitioner argues this does not constitute a "prior sentence" under § 4A1.1 of the United States Sentencing Guidelines ("USSG"). Id. at 3-5. Accordingly, Petitioner contends that the PSR should be corrected to reduce his criminal history classification for the purposes of calculating his sentence. Id.
Rule 36 is an improper vehicle for the relief Petitioner seeks. "Rule 36 may not be used 'to make a substantive alteration to a criminal sentence.'" United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (quoting United States v. Pease, 331 F.3d 809, 816 (11th Cir. 2003) ("Rule 36 can be used to correct 'clerical' errors; it cannot be used . . . to make a substantive alteration to a criminal sentence.") (citing United States v. Werber, 51 F.3d 342, 347 (2d Cir.1995) (finding that "Rule 36 covers only minor, uncontroversial errors ..." and that a district court has no jurisdiction to correct a defendant's sentence where the corrections are aimed at remedying errors of law rather than mere transcription))).
Here, Petitioner challenges the United States Probation Office's interpretation of § 4A1.1 of the USSG as applied to his prior sentence. Mot. to Correct Record, Attach. 2 at 1-3. He characterizes the alleged misinterpretation as a "clerical error" subject to correction under Rule 36. Id. at 4. Rule 36, however, allows the correction of only "clerical errors" in the record. See, e.g., United States v. Cano, 558 Fed. App'x 936, 938-39 (11th Cir. 2014) (allowing a district court to change the number of counts in a judgment to reflect the jury verdict because the change did not alter the length of petitioner's sentence); Portillo, 363 F.3d at 165 (allowing a district court to change the payee of petitioner's restitution under Rule 36 because the change did not substantively alter the amount owed by petitioner). By contrast, the correction Petitioner seeks would alter his criminal history category and, in effect, reduce the length of his sentence. Such a reduction would constitute a "a substantive alteration to a criminal sentence" outside the scope of Rule 36. Portillo, 363 F.3d at 1164 (internal quotations omitted). Therefore, the Court lacks jurisdiction to alter the PSR under Rule 36. As a result, Petitioner's motion should be denied. In order to substantively challenge his conviction on this ground, Petitioner must file a habeas petition under 28 U.S.C. § 2255. Because the Court previously denied his first petition under § 2255 (ECF No. 72), however, Petitioner must first seek and be granted leave to file a second petition from the Eleventh Circuit.
CONCLUSION
WHEREFORE, it is recommended that Petitioner's "Motion Pursuant to Fed. R. Crim. P. 36 to Correct the Record Arising from Oversight." (ECF No. 176) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 12th day of August, 2019.
/s/ STEPHEN HYLES
UNITED STATES MAGISTRATE JUDGE