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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14767
Non-Argument Calendar
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D.C. Docket No. 0:06-cr-60248-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY MCCRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 29, 2014)
Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Stanley McCray appeals pro se the denial of his post-judgment motion to
amend and correct his presentence investigation report. McCray argues that the
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presentencing investigation report erroneously stated that he had been convicted of
aggravated assault when he instead had pleaded guilty to a lesser-included charge
and that his sentence should not have been enhanced under the Armed Career
Criminal Act. McCray filed his motion nearly seven years after his criminal
conviction became final. We vacate and remand with instructions to dismiss for
lack of jurisdiction.
We review de novo jurisdictional issues. United States v. Lopez, 562 F.3d
1309, 1311 (11th Cir. 2009).
The district court lacked jurisdiction to entertain McCray’s motion several
years after his sentence was imposed. Federal Rule of Criminal Procedure 32
governs the preparation of presentencing reports, but it provides no jurisdiction for
correcting a report after a judgment of conviction and sentence has been entered.
Fed. R. Crim. P. 32; United States v. Fischer, 821 F.2d 557, 558 (11th Cir. 1987).
An error in the report may instead be challenged on direct appeal. United States v.
Peloso, 824 F.2d 914, 915 (11th Cir. 1987). Federal Rule of Criminal Procedure
35 permits a district court to correct a sentence for an arithmetical, technical, or
other clear error, but only within 14 days of sentencing. Fed. R. Crim. P. 35(a).
And Federal Rule of Criminal Procedure 36 permits a district court, at any time, to
correct a clerical error or an error in the record arising from oversight or omission.
Fed. R. Crim. P. 36. But a motion under Rule 36 may not be used to make
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substantive alterations to a sentence. United States v. Portillo, 363 F.3d 1161,
1164 (11th Cir. 2004). And a defendant cannot challenge the accuracy of his
presentencing investigation report for the first time in a collateral attack. Simmons
v. United States, 777 F.2d 660, 661–62 (11th Cir. 1985). Moreover, a collateral
attack by McCray would be barred as successive unless he first obtained
permission from this Court to file his motion. 28 U.S.C. § 2255(h). Because the
district court lacked jurisdiction to entertain McCray’s motion, we vacate and
remand with instructions to dismiss for lack of jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS.
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