United States v. Barker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-7944

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THOMAS J. BARKER,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (CR-04-31)

Submitted: June 9, 2006 Decided: July 7, 2006

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed in part; modified in part by unpublished per curiam
opinion.

Thomas J. Barker, Appellant Pro Se. Edward Albert Lustig, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Thomas J. Barker pled guilty to conspiracy to possess

with intent to distribute more than 500 grams of cocaine, in

violation of 21 U.S.C. § 846 (2000), and distribution of more than

500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1)(2000).

The district court sentenced Barker to 175 months’ imprisonment on

each count, to run concurrently. The district court also announced

an alternate sentence of 120 months’ imprisonment (60 months on

each count, to run consecutively). Barker filed a “Motion for

Reconsideration of Final Judgment Order,” citing Fed. R. Civ. P.

60(a), arguing that there are clerical errors in the final judgment

as to his alternate sentence and the description of the statutes

under which he was convicted. The district court denied the

motion, finding that the Federal Rules of Civil Procedure are

inapplicable to Barker’s criminal case.

While we agree with the district court that the relief

sought was unavailable through Fed. R. Civ. P. 60(a), Barker’s

claims of clerical error could be corrected under authority of Fed.

R. Crim. P. 36. We find, however, that the alternate sentence

contained in the final judgment comports with the alternate

sentence announced by the court at the sentencing hearing. Hence,

to the extent the district court declined to amend Barker’s

alternate sentence, we affirm.

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 However, we find there is a clerical error in Barker’s

criminal judgment as to the description of the statutes under which

he was convicted. The first page of the Judgment accurately

reflects that Barker was convicted for violations of 21 U.S.C.

§§ 841(a)(1), 846 (2000). However, on page two of the Judgment,

under the Imprisonment section, it inaccurately lists the statutory

violation as “Title 18 U.S.C.” rather than “Title 21 U.S.C.” We

modify the district court’s order only to direct that the clerk of

the district court correct this typographical error. See Fed. R.

Crim. P. 36. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED IN PART;
MODIFIED IN PART

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