UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7669
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00991-PMD-1)
Submitted: April 23, 2012 Decided: April 27, 2012
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Howard Scott, Appellant Pro Se. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Scott pled guilty to one count of possession
with the intent to distribute a quantity of heroin, in violation
of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 2006 & Supp. 2011),
and was sentenced to 188 months’ imprisonment. He now appeals
the district court’s denial of his Fed. R. Crim. P. 36 motion
seeking the correction of an error in the transcript of his
guilty plea hearing. We have reviewed the record and find no
reversible error.
The basis of Scott’s motion concerns a statement made
by counsel for the Government at the guilty plea hearing. The
transcript of the hearing reflects that, after Scott affirmed
his guilt to the charge in the indictment, counsel for the
Government, while summarizing the relevant evidence, stated that
175 grams of heroin were associated with 465 glassine bags found
during a search. Scott agreed with this summary of the
evidence, and the district court accepted his guilty plea.
Following this court’s affirmance of the district court’s
judgment, United States v. Scott, 426 F. App’x 169, 171-72
(4th Cir. 2011) (No. 10–5175), Scott filed the subject motion
under Rule 36 to correct the record.
Scott argued in the motion that, in making his oral
summation of the evidence at the guilty plea hearing, counsel
for the Government read from a forensic report that concluded
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that a drug analysis of the 465 glassine bags revealed “a
combined weight of 0.75 grams” of heroin in the sample tested.
In an affidavit accompanying the motion that is not
contradicted by any evidence in the record, Scott averred that,
at the guilty plea hearing, counsel for the Government “read off
of the report” that the amount of heroin associated with the 465
glassine bags was 0.75 grams, not the 175 grams listed in the
hearing transcript. The obvious inference from this
uncontradicted evidence is that the court reporter made a
clerical error in transcribing the amount as 175 grams. Such an
error was subject to correction under Fed. R. Crim. P. 36.
See, e.g., United States v. Burd, 86 F.3d 285, 288 (2d Cir.
1996) (“A clerical error [subject to correction under Rule 36]
must not be one of judgment or even of misidentification, but
merely of recitation, of the sort that a clerk or amanuensis
might commit, mechanical in nature.” (internal quotation marks
and alteration omitted)); United States v. Vecchiarello,
536 F.2d 420, 425 (D.C. Cir. 1976) (rejecting an argument
challenging the district court’s correction of an error in the
stenographer’s notes of a sentencing hearing and citing to Rule
36 for the proposition that the court had “the duty and power”
to correct errors in the record).
Nevertheless, we conclude that there is no need to
remand this case to the district court for correction of the
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error. The error in the transcript and the district court’s
failure to correct it are harmless under Fed. R. Crim. P. 52(a),
because Scott does not contest the validity of his conviction or
sentence, and because our review of the record indicates that
the error in no way undermines or otherwise affects Scott’s
conviction or sentence. Accordingly, we affirm the district
court’s order denying Scott’s Fed. R. Crim. P. 36 motion to
correct the transcript of his guilty plea hearing.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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