United States v. Raul Stevens ( 2018 )

Case: 17-40899 Document: 00514704662 Page: 1 Date Filed: 10/31/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40899
Fifth Circuit
FILED
Summary Calendar October 31, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
RAUL JAVIER STEVENS,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-135-1
Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
Proceeding pro se, Raul Javier Stevens, who was convicted in 2005 of
drug-related offenses, contests the denial of his Federal Rule of Criminal
Procedure 36 motion. He asserts: the district court’s discussion at sentencing
concerning the appropriateness of a two-level role adjustment under
Sentencing Guideline § 3B1.1(c) conflicted with its adoption of the presentence
investigation report, which recommended a three-level Guideline § 3B1.1(b)
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 17-40899 Document: 00514704662 Page: 2 Date Filed: 10/31/2018
No. 17-40899
role adjustment, and the guidelines calculation and the imposed sentence were
therefore in error; and, because the claimed oral pronouncement of his
sentence conflicted with the written pronouncement of his sentence, the oral
pronouncement controls and the “clerical error” can be corrected pursuant to
Rule 36. (Our court rejects Stevens’ contention that we should reverse the
judgment because the Government’s response to his Rule 36 motion was mailed
to a prison facility where he was formerly housed.)
Rule 36 provides: “the court may at any time 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. Stevens “has not
shown that the [claimed] discrepancy between the orally imposed sentence and
the written judgment is a clerical mistake or oversight which the district court
may correct pursuant to Rule 36”. United States v. Slanina, 359 F.3d 356, 357–
58 (5th Cir. 2004) (citation omitted); see also United States v. Mackay, 757 F.3d
195, 200 (5th Cir. 2014) (noting Rule 36 is meant to correct only “mindless and
mechanistic mistakes”). In any event, there is no conflict between the court’s
oral and written pronouncements. The court, at sentencing and in the written
judgment, imposed a sentence of 274 months’ imprisonment. (Stevens’
sentence was later reduced to 222 months’ imprisonment, pursuant to 18
U.S.C. § 3582(c)(2) (allowing the court to modify a sentence based on a
sentencing range subsequently lowered by the Sentencing Commission)).
Moreover, the record and the reasons given by the district court for
denying Stevens’ Rule 36 motion make clear that application of the three-level
§ 3B1.1(b) adjustment was not the result of a clerical mistake or oversight. See
United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008).
AFFIRMED.
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