UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7922
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONIKKI HARDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:01-cr-00235-HMH-1)
Submitted: April 14, 2016 Decided: April 22, 2016
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Donikki Hardy, Appellant Pro Se. Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donikki Hardy appeals from the district court’s orders
denying his Fed. R. Crim. P. 36 motion and his motion for
reconsideration. Hardy sought to delete information from his
presentence report (“PSR”) that had been expunged by the state
court. Because the relief he seeks is not available by way of
Rule 36, we affirm.
Rule 36 provides that “[a]fter giving any notice it
considers appropriate, the 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.” The Advisory Committee Notes to Rule 36 point out
that Rule 36 is similar to Fed. R. Civ. P. 60(a), which provides
for the correction of clerical mistakes in civil orders. The
Ninth Circuit explained the type of clerical mistakes that may
be corrected under Rule 60(a) as follows:
The basic distinction between “clerical mistakes” and
mistakes that cannot be corrected pursuant to Rule
60(a) is that the former consist of “blunders in
execution” whereas the latter consist of instances
where the court changes its mind, either because it
made a legal or factual mistake in making its original
determination, or because on second thought it has
decided to exercise its discretion in a matter
different from the way it was exercised in the
original determination.
Blanton v. Angelone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987)
(citation omitted).
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Here, the PSR was not incorrect when issued, and in fact is
not currently incorrect. Hardy does not submit that the
challenged information was included by mistake and does not
assert that it is false or that he should have been sentenced
differently. Instead, he seeks to alter the PSR based on a
later state order that does not even purport to apply to federal
documents. Because the relief sought by Hardy does not consist
of a “blunder in execution,” the district court cannot provide
relief under Rule 36. *
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
*Hardy’s conclusory allegations regarding the prejudice to
him are matters which require factual development and
administrative exhaustion within the Bureau of Prisons.
Depending on the actual harm, his remedy may lie under 28 U.S.C.
§ 2241 (2012), or Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971).
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