United States v. Harrill , 91 F. App'x 356 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 31, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10804
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DWIGHT LYNN HARRILL
Defendant - Appellant
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Consolidated with
No. 03-10805
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UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DWIGHT LYNN HARRILL
Defendant - Appellant
--------------------
Consolidated with
No. 03-10806
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UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DWIGHT LYNN HARRILL
Defendant - Appellant
No. 03-10804 c/w Nos. 03-10805, 03-10806
and 03-10807
-2-
--------------------
Consolidated with
No. 03-10807
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UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DWIGHT LYNN HARRILL
Defendant - Appellant
--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:91-CR-68-R
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Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES,
Circuit Judges.
PER CURIAM:*
Dwight Lynn Harrill (Harrill), federal prisoner # 17843-077,
was convicted by a jury of conspiracy to distribute and possess
ephedrine knowing and having reasonable cause to believe it would
be used to manufacture methamphetamine. Harrill was also
convicted of use of a telephone to facilitate a drug transaction
and aiding and abetting in the possession of ephedrine knowing
and having reasonable cause to believe it would be used to
manufacture methamphetamine. Harrill filed four post-judgment
motions which the district court denied. Harrill appeals the
denial of these motions.
*
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that this opinion should not be published and is not precedent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.
No. 03-10804 c/w Nos. 03-10805, 03-10806
and 03-10807
-3-
Harrill argues that the district court erred in denying his
motion to correct an error in the pre-sentence report (PSR)
pursuant to FED. R. CRIM. P. 32. The district court correctly
denied the motion because it lacked jurisdiction under Rule 32 to
consider Harrill’s motion. United States v. Engs, 884 F.2d 894,
895 (5th Cir. 1989). Complaints regarding contents of a PSR must
be raised prior to the imposition of sentence. Id. Harrill
argues in his reply brief that despite Engs, the district court
still has the power to issue a nunc pro tunc order correcting the
error in the PSR. However, this court will not consider issues
raised for the first time in a reply brief. United States v.
Brown, 305 F.3d 304, 307 n.4 (5th Cir. 2002).
Harrill argues that the district court erred in denying his
motion to correct a clerical error in the judgment pursuant to
FED. R. CRIM. P. 36. Rule 36 provides that “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 (emphasis added).
Harrill has failed to show how he has been harmed by the error.
Therefore, the district court did not abuse its discretion in
denying Harrill’s Rule 36 motion. United States v. Mueller, 168
F.3d 186, 188 (5th Cir. 1999).
Harrill further argues that the district court abused its
discretion in denying his motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2). Harrill’s motion was based
No. 03-10804 c/w Nos. 03-10805, 03-10806
and 03-10807
-4-
upon Amendments 371, 484, and 591 to the United States Sentencing
Guidelines. Harrill is not eligible for a reduction in his term
of imprisonment pursuant to § 3582(c)(2) because the Amendments
he relies upon would not reduce his sentence. 18 U.S.C.
§ 3582(c)(2); United States v. Towe, 26 F.3d 614, 616 (5th Cir.
1994). Thus, the district court did not abuse its discretion in
denying Harrill’s § 3582(c)(2) motion.
Harrill also argues that the district court abused its
discretion in denying his motion to recuse pursuant to 28 U.S.C.
§ 455(a). The statements made by the district court that Harrill
points to were made at the sentencing hearing. The district
court expressed its opinion regarding Harrill’s credibility based
upon the evidence and events that occurred during the course of
the judicial proceedings. Those remarks do not constitute a
basis for recusal under § 455(a). Liteky v. United States, 510
U.S. 540, 555 (1994).
AFFIRMED.