Case: 15-10818 Date Filed: 11/19/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10818
Non-Argument Calendar
________________________
D.C. Docket No. 1:96-cr-00092-CB-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN PIERCE PRYOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 19, 2015)
Before HULL, WILLIAM PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
Case: 15-10818 Date Filed: 11/19/2015 Page: 2 of 5
Edwin Pryor, a federal prisoner, pro se appeals the district court’s denial of
his post-conviction “motion to correct presentence report errors,” filed pursuant to
Rule 36 of the Federal Rules of Criminal Procedure (“Rule 36”). After review, we
affirm. 1
I. BACKGROUND
In 1997, a jury in federal district court convicted Pryor of one count of
possessing a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g).
The presentence investigation report (“PSI”) designated Pryor as an armed career
criminal and assigned a base offense level of 33, pursuant to U.S.S.G. § 4B1.4(a).
The PSI also assigned Pryor 16 criminal history points, yielding a criminal history
category of VI, based on the following offenses: (1) a 1974 Ohio conviction for
aggravated robbery and felonious assault (three points); (2) a 1981Alabama
conviction for possession of controlled substances (three points); (3) a 1981
Alabama conviction for second-degree escape (three points); (4) a 1989 South
Carolina conviction for possession of cocaine and marijuana (one point); (5) a
1990 North Carolina conviction for driving while impaired (“DWI”) and driving
without a license (one point); and (6) a 1996 Alabama conviction for robbery
(three points). The PSI added two additional criminal history points because Pryor
1
We review the district court’s application of Rule 36 de novo. United States v. Portillo,
363 F.3d 1161, 1164 (11th Cir. 2004).
2
Case: 15-10818 Date Filed: 11/19/2015 Page: 3 of 5
committed the federal offense of conviction while on absconder status with a
warrant outstanding for a probation violation.
The district court sentenced Pryor to 293 months’ imprisonment, which was
the top of his advisory guidelines range. 2 Pryor appealed his conviction and
sentence, but this Court affirmed. Pryor subsequently filed two motions to vacate
under 28 U.S.C. § 2255, one in 2007 and the other in 2014, neither of which were
successful.
II. RULE 36 MOTION TO CORRECT PSI
On December 17, 2014, Pryor filed a “motion to correct presentence report
errors” under Rule 36, which asserted that the PSI contained two errors adversely
affecting Pryor’s total criminal history point calculation. First, Pryor argued that
he never sustained a 1990 North Carolina DWI conviction and, therefore, should
not have been assessed one criminal history point for that non-existent conviction.
Second, Pryor argued that the PSI should not have assessed three criminal history
points for his 1974 Ohio conviction for aggravated robbery and felonious assault.
Pryor attached a letter from a Supervising U.S. Probation Officer, which
acknowledged that Pryor’s PSI miscalculated his criminal history points because
the parole resulting from Pryor’s 1974 Ohio conviction was not revoked and,
presumably, the 1974 Ohio conviction was otherwise too old to warrant criminal
2
Based on a total offense level of 33 and a criminal history category of VI, the 1997 PSI
stated that Pryor’s advisory guidelines range was 235 to 293 months’ imprisonment.
3
Case: 15-10818 Date Filed: 11/19/2015 Page: 4 of 5
history points. Pryor asserted that these errors affected his substantial rights
because the PSI’s criminal history point calculations affect how the Board of
Prisons determines custody points, security levels, camp eligibility, and program
credits.
In a February 2, 2015 order, the district court denied Pryor’s Rule 36
motion. The district court noted that Rule 36 only authorizes the correction of
clerical mistakes, and Pryor’s motion did not identify any clerical mistakes arising
from oversight or omission. Rather, to the extent that any error existed, “it was
due to [Pryor’s] failure to assert a timely objection.” Pryor appealed the district
court’s denial of his Rule 36 motion.
III. DISCUSSION
Rule 36 allows a district court to “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. “It is clear in this Circuit that Rule
36 may not be used to make a substantive alteration to a criminal sentence.”
United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (quotations
omitted). Instead, Rule 36 is a remedy for errors that are “minor and mechanical in
nature.” Id. at 1165.
Here, because Pryor requested substantive, not clerical, changes to his PSI,
we cannot say that the district court erred in denying Pryor’s Rule 36 motion. In
4
Case: 15-10818 Date Filed: 11/19/2015 Page: 5 of 5
his Rule 36 motion, Pryor argued that he should not have been assessed one
criminal history point for a 1990 North Carolina DWI conviction because he did
not sustain such a conviction. This argument amounted to a substantive challenge
to the material factual findings of the PSI. Pryor further argued that his 1974 Ohio
conviction should not have been assessed three criminal history points. This
argument amounted to a substantive challenge to the implicit legal conclusions of
the PSI. These assertions of error are neither “minor” nor “mechanical in nature.”
Id. Rather, Pryor sought a “substantive alteration” of his criminal sentence.3 Id. at
1164. But Rule 36 is not an appropriate mechanism for raising such substantive
challenges. Id. Accordingly, the district court did not err by denying Pryor’s Rule
36 motion.
AFFIRMED.
3
If Pryor is correct in both of his assertions of error, then his criminal history points
would be reduced by 4 points to a total of 12, rather than 16, which would yield a criminal
history category of V rather than VI, thus lowering Pryor’s advisory guidelines range. See
U.S.S.G. Sentencing Table (1995) (providing that 13 or more criminal history points yields a
criminal history category of VI, while 10 to 12 criminal history points yields a criminal history
category of V). Accordingly, Pryor seeks to substantively alter his criminal sentence.
5