United States v. Richard Bernard ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7346
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD DWIGHT BERNARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:03-cr-00420-JAG-3)
Submitted: June 7, 2021 Decided: June 23, 2021
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Dwight Bernard, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Dwight Bernard appeals the district court’s order denying his motion to
reconsider. The district court granted Bernard’s motion to correct a clerical error in his
criminal judgment pursuant to Fed. R. Crim. P. 36. Bernard claimed that his March 11,
2005, criminal judgment erroneously reflected that he pled guilty to Counts One and Two
of the Second Supercseding Indictment, whereas he pled guilty to Counts One and Two of
the Supercseding Indictment. The Government agreed, and the district court granted
Bernard’s motion and issued an amended judgment with the requested correction. Bernard
then moved the court to reconsider and order resentencing.
On appeal, Bernard relies on United States v. Vanderhorst, 927 F.3d 824 (4th Cir.
2019). In Vanderhorst, the defendant sought resentencing under Rule 36 based on a
clerical error in his presentence report in characterizing a prior conviction. We held that
defendants are not “categorically barred from relying on Rule 36 to correct a sentence
tainted by a clerical error.” 927 F.3d at 828. We nonetheless affirmed the district court’s
denial of relief because only one of Vanderhorst’s prior convictions was tainted by clerical
error and his three remaining convictions supported his career offender designation. Id. In
his case, Bernard contends, the district court erroneously found that Rule 36 did not provide
any other form of relief and should have liberally construed his motion to allege that his
sentencing was tainted by the clerical error. He claims that he was erroneously sentenced
based on the Second Supercseding Indictment, tainting his sentence and necessitating full
resentencing.
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First, as the district noted, Bernard’s Rule 36 motion did not request resentencing
or anything beyond mere correction of the clerical error in his judgment. While, in light
of Vanderhorst, other relief was available to Bernard beyond the correction of the clerical
error in his judgment, any error by the district court in finding otherwise was harmless. * A
clerical error was made and has been rectified, and the record indicates that Bernard was
sentenced for the correct counts under the correct indictment.
Accordingly, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
*
We further note that the district court committed harmless error in analyzing
Bernard’s motion to reconsider under Fed. R. Civ. P. 59(e), as the Federal Rules of Civil
Procedure are inapplicable in a criminal case. See United States v. Mosavi, 138 F.3d 1365,
1366 (11th Cir. 1998) (per curiam) (stating that “Rule 60(b) simply does not provide for
relief from judgment in a criminal case”).
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