[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11921 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 3, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:03-cr-00208-EAK-TGW-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MICHAEL JERMAINE COLSTON,
llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 3, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Michael Jermaine Colston appeals the district court’s denial of his pro se
post-conviction motion, made pursuant to Fed. R. Crim. P. 36, to correct a
purported error in the pre-sentence investigation report (PSI). Colston was
sentenced as a career offender, under U.S.S.G. § 4B1.1, in part because his PSI
reflected that one of his predicate offenses was for battery on a police officer.
After sentencing, Colston requested that the PSI be changed to reflect that he had
merely pushed a police officer backwards, and not that he pushed the officer
down. On appeal, Colston argues that the error in the PSI was an inadvertent
“clerical error” that can be corrected by Rule 36. The government responds that
Colston’s proposed change to the PSI “seeks to recharacterize the conduct
underlying his conviction for battery on a law enforcement officer.” Further, the
government notes that this sort of correction is beyond the purview of Rule 36
because the rule should be used to correct undisputed errors and not, as is the case
here, to substantively alter a sentence.
We review de novo the application of Fed. R. Crim. P. 36 to correct a
district court’s sentencing judgment. United States v. Portillo, 363 F.3d 1161,
1164 (11th Cir. 2004). Rule 36 allows the court, after giving appropriate notice, 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.
But Rule 36 cannot be used to make a substantive alteration to a criminal sentence.
Portillo, 363 F.3d at 1164. Moreover, a defendant who alleges that his PSI
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contains incorrect information must usually raise that argument at sentencing and
on direct appeal, rather than for the first time in a post-conviction proceeding. See
United States v. Peloso, 824 F.2d 914, 915 (11th Cir. 1987).
Here, Colston effectively seeks to modify the district court’s guideline
calculation, and the factual conclusions on which it relied, so that he will not be
characterized as a career offender under U.S.S.G. § 4B1.1. Although at sentencing
Colston objected to his base offense level, his career offender status, and the
calculation of his criminal history score, he did not object to the facts in the PSI.
Thus, he is not seeking to alter a “clerical error” in the facts of the PSI under Rule
36. The district court is
AFFIRMED.
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