Opinion
17-cr-128 (ARR)
05-15-2020
UNITED STATES OF AMERICA, Plaintiff, v. DARREN ELLIOTT, Defendant.
Not for print or electronic publication
Opinion & Order
ROSS, United States District Judge:
The defendant, Darren Elliott, moves pro se for a correction to his Presentence Report ("PSR") pursuant to Federal Rule of Criminal Procedure 36. For the reasons set forth below, Elliott's motion is denied.
First, Rule 36 is not a proper vehicle for the correction that Elliott seeks. Rule 36 allows the court to correct clerical errors in the record. See Fed. R. Crim. P. 36. "Rule 36 covers only minor, uncontroversial errors . . . [and not] an error of law." United States v. Llanos, 59 F. App'x 412, 414 (2d Cir. 2003) (summary order) (alteration in original) (quoting United States v. Werber, 51 F.3d 342, 347-48 (2d Cir. 1995)). "Further, '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.'" Id. (quoting United States v. Burd, 86 F.3d 285, 288 (2d Cir. 1996)). Elliott seeks a correction to his criminal history category. Even if I assume that there is an error in Elliott's criminal history category—which I do not decide that there is—it would not be a mere mechanical error of recitation. Rather, it would require some legal analysis to correct and would therefore be an error of law.
Second, Elliott's sixty-month sentence is the statutory mandatory minimum for his crime of conviction. See 18 U.S.C. § 924(c)(1)(A)(i). Thus, even if he did fall within a lower criminal history category, he could not have received a lower prison sentence. In fact, Elliott's PSR states that "[t]he guideline sentence is the term of imprisonment required by statute. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to this count of conviction." PSR ¶ 26, ECF No. 87 (citing U.S. Sentencing Guidelines Manual § 2K2.4(b) (U.S. Sentencing Comm'n 2018)).
Third, in his plea agreement, Elliott waived the right to appeal or file a petition pursuant to 28 U.S.C. § 2255, as long as I imposed a prison sentence of sixty-five months or less. See Plea Agreement ¶ 5, ECF No. 115-1. I sentenced Elliott to sixty months' imprisonment. Therefore, Elliott has waived his right to challenge his sentence based on this purported error in his PSR.
Despite the waiver in his plea agreement, Elliott has already filed a § 2255 petition, and I have already denied it. See Order Denying Mot. to Vacate, ECF No. 116. Section 2255(h) restricts Elliott's ability to file a second or successive motion. See § 2255(h). --------
Finally, although I do not have a transcript from Elliott's sentencing proceeding before me, I note that Elliott's counsel did not object to the PSR in his sentencing memorandum. See Def.'s Sentencing Mem. 1, ECF No. 93 ("After reviewing the Pre-Sentence Report, counsel has no objections to the findings of the Pre-Sentence report."). In fact, Elliott's counsel acknowledged that "Mr. Elliot[t] is in Criminal History Category III[.]" Id. at 3. Thus, assuming that Elliott's counsel did not change his position when speaking at the sentencing proceeding, any objection to Elliott's criminal history category is waived. See Llanos, 59 F. App'x at 413-14 (finding that defendant waived objection to PSR because counsel did not object at sentencing); see also United States v. Diaz, 176 F.3d 52, 117-18 (2d Cir. 1999) ("In his PSR objection letter, [defendant] did not challenge the PSR's determination that he was an organizer or leader . . . . Further, he failed to object to the enhancement at sentencing. Thus, [defendant] waived this claim.").
For the reasons set forth above, Elliott's motion for a correction to his PSR is denied. SO ORDERED. Dated: May 15, 2020
Brooklyn, New York
/s/_________
Allyne R. Ross
United States District Judge