FILED
NOT FOR PUBLICATION
MAR 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30262
Plaintiff - Appellee, D.C. No. 2:10-cr-00079-RMP-1
v.
MEMORANDUM*
TRACY A. MCKENZIE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted February 4, 2016
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.
Rule 36 of the Federal Rules of Criminal Procedure allows a district court to
correct “a clerical error” in a judgment. Fed. R. Crim. P. 36. McKenzie argues
that when the district court entered the judgment in his case, she “erred” by failing
to award him credit for the time he spent in state custody prior to the date he was to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
begin serving his federal sentence. But the district court had no authority to award
McKenzie credit for time served, even had she wanted to; only the Attorney
General, through the Bureau of Prisons, may grant defendants credit for time
served prior to the start of their federal sentences. United States v. Wilson, 503
U.S. 329, 333 (1992); United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006).
The district court’s failure to do something she was forbidden from doing was not
an “error”—clerical or otherwise—that can be “corrected” via Rule 36.
That is not to say that McKenzie has no right to judicial process if he
believes he has been wrongly denied credit for time he served prior to the start of
his federal sentence. But Rule 36 is not the proper mechanism to assert his right to
such credit. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).
AFFIRMED.
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