United States v. Clyde E. Young , 221 F. App'x 961 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 11, 2007
No. 06-14195 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 89-00103-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLYDE E. YOUNG,
a.k.a. RED,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(April 11, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
In November 1990, appellant was convicted in the district court of several
offenses he committed in carrying out a marijuana distribution scheme. His
convictions were affirmed on appeal. The district court thereafter (in November
1998) vacated one of his convictions – Count Two alleging that he conspired to
possess and distribute marijuana – because it was a lesser included offense in his
Count One conviction for engaging in a continuing criminal enterprise.
The matter before us began with appellant’s May 7, 2004 request – made as
a “Motion to vacate, modify, or set aside the judgment pursuant to [Federal] Rule
[of Civil Procedure] 60(b)” – that the court order vacated the $50 assessment
imposed as part of his Count Two sentence. The court, construing the request as
having been made under Federal Rule of Criminal Procedure 36 to remedy a
clerical error, granted it on January 9, 2006.1
Appellant then requested the court on June 19, 2006, to enter an order for
“clarification and determination,” referring to the January 9, 2006 order. The court
denied the motion on July 18, 2006, stating that no clarification was necessary.
This appeal followed.
It requires no citation of authority to say that a district court’s refusal to
clarify a previous order is reviewed for an abuse of discretion. We discern no
1
On May 22, 2006, appellant moved the court to “correct the record” by vacating his
conviction on Count Sixteen of the indictment for attempting to possess with intent to distribute
in excess of 100 kilograms of marijuana. The court denied the motion on June 5, 2006. This
ruling is not before us in this appeal.
2
abuse of discretion, much less error, in the court’s refusal to clarify an order
granting appellant’s request for the cancellation of a $50 assessment.2
AFFIRMED.
2
It may be that what appellant is seeking is the vacation of his conviction on Count
Sixteen of the indictment. If that is what he desires, he should apply to this court for leave to file
a second motion under 28 U.S.C. § 2255. See 28 U.S.C. § 2255 (“A second or successive
motion [under § 2255] must be certified as provided in section 2254 by a panel of the
appropriate court of appeals.”). We say this because he has previously litigated a § 2255
motion.
3