Opinion
CASE NO. 07-20167, 09-13350.
June 9, 2011
OPINION AND ORDER
This matter is before the Court on Defendant's Motion to Correct Pre-Sentence Report ("PSR") Pursuant to Rule 35(c) and 36 (Docket #54). Defendant argues that his attorney never went over Defendant's offense level or criminal history category with Defendant. Defendant further argues that the PSR was incorrectly calculated based on clearly erroneous information. The Court finds that, even if what Defendant argues is true, he has asserted no basis for relief.
First, Federal Rule of Criminal Procedure 35 provides that: (1) the Court may correct a sentence that "resulted from arithmetical, technical, or other clear error" if it does so within 14 days of sentencing (Rule 35(a)), or (b) upon a motion by the government within one year of sentencing for substantial assistance by the defendant (Rule 35(b)). As neither the Court nor the Government has initiated the effort to correct Defendant's sentence (which he attempts to do indirectly by challenging the PSR calculation), Rule 35 does not apply. Moreover, Defendant was sentenced on December 11, 2007, and amended judgment was entered on January 17, 2008. The instant motion was filed on March 24, 2011, i.e., over three years after he was sentenced. As such, the motion is untimely.
Rule 35(c) provides, in its entirety: "As used in this rule, `sentencing' means the oral announcement of the sentence."
Second, Federal Rule of Criminal Procedure 36 provides that a court may correct: (1) "a clerical error in a judgment, order, or other part of the record," or (2) an error "in the record" arising from oversight or omission. Defendant's motion does not allege a clerical error or any error in the record. As such, Rule 36 is inapplicable.
Accordingly, and for the reasons set forth above, the Court DENIES Defendant's Motion to Correct Pre-Sentence Report (Docket #54).