Case: 14-40971 Document: 00513050653 Page: 1 Date Filed: 05/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40971
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 20, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
DARYEL ANTHONY HOLLEY, also known as Hoopty,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-221-3
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Daryel Anthony Holley, federal prisoner # 18321-078, pleaded guilty of
conspiring to possess with the intent to distribute more than five kilograms of
cocaine. After the district court entered its judgment of conviction and
sentence, Holley filed a motion under Federal Rule of Criminal Procedure 36
to correct a purported oversight in his presentence report (PSR). He asserted
that the PSR inaccurately referred to the conspiracy of which he was a part as
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-40971 Document: 00513050653 Page: 2 Date Filed: 05/20/2015
No. 14-40971
the “Daryel Holley (Holley) drug trafficking organization,” even though he was
not the principal leader or organizer of the organization. He complained that
the bureau of prisons relied on that information to assign him a more
restrictive custody classification. Holley now appeals the district court’s denial
of his motion.
Rule 36 provides that a district court “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. A PSR is
considered part of the record that may be corrected under Rule 36. United
States v. Mackay, 757 F.3d 195, 200 (5th Cir. 2014). However, relief under
Rule 36 is appropriate only when “the court intended one thing but by merely
clerical mistake or oversight did another.” United States v. Buendia-Rangel,
553 F.3d 378, 379 (5th Cir. 2008) (internal quotation marks and citation
omitted).
In this case, the changes that Holley requested be made to his PSR would
have required more than the mechanical correction of a clerical error, or error
arising from an oversight or omission. Removing the PSR’s references to the
Holley drug trafficking organization would have resulted in the district court
making substantive changes to the facts stated in that document. Holley has
not shown that the district court erred in denying his request for relief under
Rule 36. See Mackay, 757 F.3d at 200 (noting that Rule 36 does not create the
right to perpetually apply “different factual analyses to a case”).
The Government’s motion for summary affirmance is GRANTED, its
alternative motion for an extension of time to file an appellee’s brief is
DENIED, and the judgment of the district court is AFFIRMED.
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