United States v. Singleterry , 19 F. App'x 8 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2221
UNITED STATES,
Appellee,
v.
DARYL E. SINGLETERRY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Daryl E. Singleterry on brief pro se.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.
September 27,2001
Per Curiam. Daryl E. Singleterry appeals the
district court's denial of his motion to dismiss Count III,
a forfeiture count, in his 1993 indictment and to return the
forfeited money to him. Unlike the original judgment of
November 2, 1993, the amended judgment of July 30, 1998,
entered after remand from this court, did not reference
Count III. Singleterry argued that the amended judgment's
failure to comply with Fed. R. Crim. P. 32(d)(2)'s
requirement that "a final order of forfeiture shall be made
part of the sentence and included in the judgment" revived
his opportunity to challenge the forfeiture count. He
claimed that, because the forfeiture count was not mentioned
in the amended judgment, that count must be dismissed. But,
he offers no supporting case law for that proposition.
We find neither error of law nor abuse of
discretion in the district court's denial of Singleterry's
motion to dismiss Count III. Nothing about Count III was in
dispute either before or after entry of the amended
judgment. Neither party raised any issue regarding Count
III on remand. And, there is no evidence that the district
court intended on remand to effect any change regarding that
count. From aught that appears, the failure to reference
Count III in the amended judgment of July 1998 was simply a
clerical oversight in the preparation of the amended
judgment. Such an mistake is subject to correction pursuant
to Fed. R. Crim. P. 36 Cf. United States v. Loe, 248 F.3d
449, 464 (5th Cir. 2001) (finding nothing objectionable
about a nunc pro tunc amendment to the judgment referencing
the forfeiture).
The district court's denial of the motion to
dismiss Count III is affirmed.
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