Case: 16-50487 Document: 00513751050 Page: 1 Date Filed: 11/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50487 FILED
Summary Calendar November 8, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERGIO RIVERA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:10-CR-207-16
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Sergio Rivera, federal prisoner # 86921-279, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his motion to correct the
presentence report (PSR) pursuant to Federal Rule of Criminal Procedure 36.
When, as here, a district court certifies that an appeal is not taken in good
faith, the appellant may pay the filing fee or challenge the court’s certification
decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-50487 Document: 00513751050 Page: 2 Date Filed: 11/08/2016
No. 16-50487
into an appellant’s 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 citation
omitted).
Rivera maintains that he was entitled to relief pursuant to Rule 36
because the PSR wrongly set forth that he last used drugs at age 29. Rule 36
provides that a district court may at any time correct a clerical error in the
record arising from oversight or omission. FED. R. CRIM. P. 36. However, relief
under Rule 36 is proper only when “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). Here, the changes that Rivera sought to have made to the PSR did
not involve the mechanical correction of a clerical error or concern an error
arising from an oversight or omission. Rather, Rivera requested that the
district court make substantive changes to the facts in the PSR. Such changes
may not be made pursuant to Rule 36. See United States v. Mackey, 757 F.3d
195, 200 (5th Cir. 2014).
Thus, Rivera’s appeal does not present a nonfrivolous issue and has not
been brought in good faith. See Howard, 707 F.2d at 220. The motion for leave
to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.
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