[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 28, 2008
No. 07-13899 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00022-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL WRIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 28, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Daniel Wright, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion filed pursuant to Fed.R.Crim.P. 36 (“Rule 36”),
requesting that the district court send to the Bureau of Prisons (“BOP”) a new copy
of his presentence investigation report (“PSI”) with the court’s sentencing findings
attached because the court had allegedly failed to attach its findings to the original
PSI, in violation of Fed.R.Crim.P. 32(i)(3)(C) (“Rule 32(i)(3)(C)”). Wright argues
that the district court is obligated to comply with Rule 32(i)(3)(C) and correct the
PSI, which the BOP uses in making determinations about a prisoner’s status.
We review de novo legal questions concerning the Federal Rules of Criminal
Procedure. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir.), cert. denied,
127 S.Ct. 264 (2006). We also review de novo the district court’s application of
Rule 36. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004).
Federal Rule of Criminal Procedure 32 (“Rule 32”) provides that for any
disputed portion of the PSI, the sentencing court “must . . . rule on the dispute or
determine that a ruling is unnecessary . . . .” Fed.R.Crim.P. 32(i)(3)(B). Also, the
court “must append a copy of the court’s determinations under this rule to any
copy of the presentence report made available to the Bureau of Prisons.”
Fed.R.Crim.P. 32(i)(3)(C) (formerly Fed.R.Crim.P. 32(c)(3)(D)). Rule 36
provides, “After 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
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correct an error in the record arising from oversight or omission.” Fed.R.Crim.P.
36.
We have stated, “Strict adherence to the dictates of [Rule 32(i)(3)(C)] is
essential because the rule helps ensure that future decisions about a defendant’s
penal treatment are based on a fair and accurate PSI.” United States v. Lopez, 907
F.2d 1096, 1101 (11th Cir. 1990). “The failure of a trial court to append a written
determination of its findings pursuant to [Rule 32(i)(3)(C)] is a ministerial matter
that may be remedied on remand without resentencing.” Id. at n.7 (quotation
omitted). In Lopez, as well as in other cases, we have remanded the case to the
district court for the sole purpose of attaching the court’s findings to the PSI in
compliance with Rule 32. Id. at 1101; Spears, 443 F.3d at 1362; United States v.
Kramer, 943 F.2d 1543, 1553 (11th Cir. 1991); United States v. Forbes, 888 F.2d
752, 755 (11th Cir. 1989).
In Portillo, in determining whether the district court had jurisdiction under
Rule 36 to correct a judgment sua sponte, we re-stated the issue as “whether the
two errors corrected by the court constituted ‘clerical mistakes’ that the court is
allowed to correct ‘at any time.’” Portillo, 363 F.3d at 1164 (quoting then-existing
language from Rule 36). We held that the district court’s correction of the
judgment to identify the party to whom defendant owed restitution was “clerical in
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that it was minor and mechanical in nature.” Id. at 1165.
Because strict adherence to Rule 32(i)(3)(C) is essential, we remand this
case to the district court for the limited purpose of either attaching the court’s
sentencing finding to the PSI and forwarding the PSI to the BOP, or forwarding the
court’s sentencing finding to the BOP and instructing the BOP to attach it to the
PSI, if the court has not already done so. See Lopez, 907 F.2d at 1101.
VACATED AND REMANDED.
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