Case: 15-50323 Document: 00513149593 Page: 1 Date Filed: 08/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2015
No. 15-50323
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEXTER DARNELL HEWITT, also known as Dexter Curnell Hewitt,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-149-1
Before JOLLY, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Dexter Darnell Hewitt, federal prisoner # 83401-180, seeks leave to
proceed in forma pauperis (IFP) in his appeal of the denial of a motion to correct
a purported clerical error in the record under Federal Rule of Criminal
Procedure 36. According to Hewitt, the probation officer erroneously used two
1990 convictions in the presentence report (PSR) to determine that Hewitt was
a career offender for purposes of calculating his guidelines sentencing range.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50323
The district court denied relief because Hewitt did not allege the type of error
correctable under Rule 36. The court ultimately reissued its ruling after
granting Hewitt’s motion for reconsideration. The court denied leave to
proceed IFP on appeal and certified that the appeal was not taken in good faith.
By moving for leave to proceed IFP, Hewitt is challenging the district
court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); FED. R. APP. P. 24(a)(5). Our inquiry into whether the appeal is taken
in good faith “is limited to whether the appeal involves legal points arguable
on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citations omitted). We
consider the IFP motion de novo. See United States v. Boutwell, 896 F.2d 884,
890 (5th Cir. 1990) (one-judge order).
Hewitt contends that the district court erred in determining that he did
not identify a correctable error under Rule 36. He argues that his two 1990
convictions were too old to use under the Sentencing Guidelines and that the
error was subject to correction under Rule 36 because the PSR is part of the
record, citing United States v. Mackay, 757 F.3d 195 (5th Cir. 2014). He
contends that the error affects his substantial rights because the Bureau of
Prisons uses the PSR for classification and designation purposes.
While the PSR is part of the record for purposes of Rule 36, Mackay, 757
F.3d at 198, Hewitt has not identified a clerical error. He has not shown that
“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). Instead, he seeks to correct
an allegedly erroneous application of the Sentencing Guidelines. Because Rule
36 does not permit new factual or legal analyses, see Mackay, 757 F.3d at 200,
Hewitt’s appeal is frivolous and not taken in good faith, see Howard, 707 F.2d
2
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No. 15-50323
at 220. The motion for leave to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
3