NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2008*
Decided October 2, 2008
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1474
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:97CR00068‐001
CARLTON LAMONT CHANEY,
Defendant‐Appellant. Larry J. McKinney,
Judge.
O R D E R
Carlton Chaney has a prior history with this court. See Chaney v. United States, 101
Fed. App’x 160 (7th Cir. 2004); Chaney v. Olson, 92 Fed. App’x 362 (7th Cir. 2004); United
States v. Chaney, No. 98‐1655, 1998 WL 789891 (7th Cir. Oct. 23, 1998). In this latest appeal
he argues that the district court erred in denying his motion under Federal Rule of Criminal
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐1474 Page 2
Procedure 36 to correct a purported clerical error. But Chaney’s motion sought substantive
relief well beyond the scope of Rule 36, so the district court was correct to deny it.
We need not recap all the details of Chaney’s criminal convictions because they are
available elsewhere. See Chaney, 101 Fed. App’x at 161‐64; Chaney, 1998 WL 789891, at *1‐3.
As relevant to this appeal, Chaney and two others robbed a bank in Indianapolis, Indiana,
on a spring morning in 1997. Chaney’s confederates absconded in a Cadillac; Chaney chose
a Chevrolet Suburban. Donna Dauby—a citizen bystander who had witnessed the robbery
from her Ford Ranger pickup truck—called 911 and decided to pursue the Cadillac. When
the Cadillac slowed to a stop a few minutes later, so too did Dauby. Chaney appeared
suddenly in the Suburban, pointed it at Dauby, and crashed into the driver’s side of her
pickup. Although the collision caused considerable damage, Dauby was able to speed
away. But Chaney didn’t stop there: he fled the scene, carjacked an Oldsmobile, and, weeks
later, pulled a gun on the arresting officers who finally found him. Chaney was convicted
of armed bank robbery, carjacking, possession of a firearm by a felon, and twice using a
firearm while committing a crime of violence. See 18 U.S.C. §§ 922(g)(1), 924(c), 2113, 2119.
The district court sentenced him to a total of 430 months’ imprisonment, and we affirmed
the judgment of the district court on direct appeal. Chaney, 1998 WL 789891, at *4.
Chaney next sought relief under 28 U.S.C. § 2255, arguing, as relevant here, that his
counsel had been ineffective at sentencing by failing to object to a two‐level upward
adjustment for reckless endangerment during flight. See U.S.S.G. § 3C1.2. At the time of the
collision with Dauby, Chaney reasoned, he was not fleeing from a law‐enforcement officer.
See id. The district court agreed that the adjustment was inappropriate. No doubt the
collision presented a substantial risk of death or serious bodily injury to Dauby. See id. But
there was no evidence, according to the court, that law‐enforcement officers were pursuing
Chaney at the time. See id. Still, Chaney could not demonstrate that he was prejudiced by
his attorney’s failure to object. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Even
without the two‐level adjustment, the court wrote, Chaney’s combined offense level
remained the same, see U.S.S.G. § 3D1.4, and so too did his guidelines range. Accordingly,
the court denied Chaney’s motion. The court did, however, issue a separate order in which
it vacated “the court’s previous finding that a sentencing enhancement pursuant to
USSG § 3C1.2“ was applicable and directed “that this Entry be appended to the Presentence
Investigation Report.” The court continued:
The foregoing is the remedial action which is warranted based on the court’s
present determination, to correct its earlier contrary determination in
paragraph 30 of the Presentence Investigation Report, that the obstruction of
justice (fleeing law enforcement) enhancement pursuant to USSG § 3C1.2, was
not warranted by the circumstances of the defendant’s offense of armed bank
robbery as charged in count 1 of the indictment. This correction does not alter
No. 08‐1474 Page 3
the defendant’s sentence under count 1 of the indictment or otherwise, but is
issued to inform the defendant and proper authorities of the court’s action.
Chaney appealed the denial of his motion, although on appeal he abandoned his
failure‐to‐object theory of ineffective assistance of counsel, and we affirmed in any event.
Chaney, 101 Fed. App’x at 166. One year later—in 2005—Chaney filed a second motion
under 28 U.S.C. § 2255 in the district court, which the court dismissed as an unauthorized
successive collateral attack. Chaney appealed yet again, but we denied his request for a
certificate of appealability. See Chaney v. United States, No. 05‐3897 (7th Cir. Dec. 20, 2005).
Chaney, undeterred, tried a new tack in 2007. This time he filed, in the district court,
a “Motion to Correct Clerical Error[] Pursuant to Fed. R. Crim. P. 36ʺ in which he asked the
court, in light of its five‐year‐old separate order, “to properly correct judgment of March 5,
1998 [Chaney’s sentencing hearing] to reflect evidence showing Mr. Chaney could not be in
a get‐a‐way vehicle on the day when the crimes were committed.” The district court denied
the motion, explaining that “[t]his court’s finding that the U.S.S.G. § 3C1.2 enhancement did
not apply in no way inferred that Chaney was not the driver of or passenger in the
Suburban.”
On appeal Chaney contends that, in the wake of its order scotching the two‐level
adjustment, the district court was obligated to delete various portions of the presentence
report, vacate Chaney’s conviction for armed bank robbery, and resentence him
accordingly. And, Chaney continues, Rule 36 was the proper vehicle for this request. He is
wrong on both counts. Rule 36 is reserved for clerical errors. See FED. R. CRIM. P. 36; United
States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008). Its enables correction “at any time” if a
judge’s oral pronouncement of a sentence does not match the written judgment that follows.
See FED. R. CRIM. P. 36; United States v. Becker, 36 F.3d 708, 709‐10 & 710 n.2 (7th Cir. 1994).
Rule 36 is not, however, a vehicle for raising substantive challenges to a sentence. Becker, 36
F.3d at 710 n.2. Chaney’s motion fails because it has nothing to do with clerical error.
AFFIRMED.