United States District Court, W.D. Arkansas, Texarkana Division
F. Barnes United States District Judge
the Court is Defendant Daniel Miller's Motion for Order
of Court Directing the United States Probation Office to
Correct and/or Delete Erroneous and Inaccurate Information.
(ECF No. 167). The Government has responded. (ECF No. 168).
The Court finds the matter ripe for consideration.
February 24, 2011, Defendant was named in a five-count
Indictment charging him with conspiracy to distribute 500
grams or more of methamphetamine and with four counts of
aiding and abetting in the distribution of more than 5 grams
of methamphetamine. On May 25, 2011, a jury returned a
verdict finding Defendant guilty on all five counts.
trial, the United States Probation Office
(“USPO”) prepared an initial Presentence
Investigation Report (“PSR”), to which the
parties offered a number of objections. On December 2, 2011,
following a hearing in which the Court resolved
Defendant's objections, the Court sentenced Defendant to
360 months' imprisonment on each count, running
concurrently, followed by 5 years' supervised release.
March 20, 2017, Defendant filed the instant motion, asking
the Court to order the USPO to delete and/or correct all
erroneous information contained within any record relevant to
the judgment in this case. Specifically, Defendant states
that certain information found in paragraphs 27, 38, and 61
of his PSR should be corrected or removed pursuant to Federal
Rule of Criminal Procedure 36.Defendant states that the
information in these paragraphs adversely impact his custody
classification within the Bureau of Prisons, as well as his
ability to participate in certain self-betterment programs.
10, 2017, the Government responded, arguing that the motion
should be denied because the Court overruled Defendant's
objections to paragraphs 27 and 38 at the December 2, 2011
hearing and because Defendant failed to raise the same
objections on appeal. The Government also argues that
Defendant failed to object at all to paragraph 61 and that
Defendant has failed to show good cause for raising the
objection now for the first time. The Government argues
further that Rule 36 does not provide Defendant the relief he
seeks because the errors asserted by Defendant are not
“clerical errors” as contemplated by Rule 36 and
because granting the motion would substantially alter
Defendant's PSR, thus reducing his total criminal history
points and criminal history category.
is meant to be accurate at the time a defendant is sentenced,
and once a “district court has heard objections to the
[PSR] and has imposed sentence, the district court's
judisdiction over the defendant becomes very limited.”
United States v. Lashley, No. 4:99-CR-185 CAS, 2016
WL 6432788, at *1 (E.D. Mo. Oct. 31, 2016) (alteration in
original). “Thus, postsentence challenges to a [PSR] .
. . must be based on statutes or rules which give the
district court jurisdiction to consider the challenge.”
Id. (alteration in original).
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. Rule 36 specifically
addresses clerical errors, or “mere scrivener's
mistake[s].” United States v. Yakle, 463 F.3d
810, 811 (8th Cir. 2006) (per curiam); see also Hodge v.
United States, No. 4:11-cv-0316-ERW, 2013 WL 627252, at
*2 (E.D. Mo. Feb. 20, 2013) (“A clerical error must not
be one of judgment or even of misidentification, but merely
of recitation, of the sort that a clerk or amanuensis might
commit, mechanical in nature.”) (quoting United
States v. Burd, 86 F.3d 285, 288 (2d Cir. 1996)).
“Rule 36 does not authorize a district court to modify
a sentence at any time.” United States v.
Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994).
Court agrees with the Government that Rule 36 does not
provide the relief Defendant seeks. As discussed above, Rule
36 allows for correction of clerical errors, but what
Defendant seeks to “correct” is neither a
clerical error nor “an error . . . arising from
oversight or omission.” “[T]he Eighth Circuit
Court of Appeals has held that Rule 36 cannot be used to
modify a presentence report after sentencing where the
alleged inaccuracies are substantive issues rather than
clerical oversights or omissions.” Lashley,
2016 WL 6432788, at *2 (citing United States v.
Long, 434 Fed.App'x. 567, 567-68 (8th Cir. 2011)).
requests that the Court order the correction or deletion of
certain information from his PSR, which would reduce his
total criminal history points and criminal history category.
Defendant argues that paragraphs 27 and 38 of his PSR
incorrectly stated that he was convicted of a felony in Texas
and that he was on probation at the time of the instant
offense. Defendant argues further that paragraph 61 of his
PSR erroneously concluded that his work history could not be
substantiated. Defendant's allegations that the Court
should remove paragraphs 27, 38, and 61 because they are
untrue raise a substantive issue with respect to the PSR, not
a clerical oversight. See Id. Thus, the Court does
not have authority under Rule 36 to order amendment of
Defendant's PSR as requested.
reasons stated above, the Court finds that Defendant's
motion (ECF No. 167) should be and hereby is
IS SO ORDERED,