A collateral attack on a sentence cannot be brought under Fed. R. Crim. P. 36 (United States v. Williams, No. 14-3570 (January 29, 2015))

United States v. Williams, No. 14-3570 (January 29, 2015). The defendant’s convictions and sentences were affirmed 15 years ago. He had subsequently filed a petition under 28 U.S.C. §2255, which was denied. The subject of this appeal was the denial of a “Motion to Correct Record” that Williams filed, seeking to reduce his sentence. The defendant’s motion “asks the district judge to revise the presentence report to show that he is not a career offend- er and to resentence him accordingly.” Pg. 2. The Government opposed the motion, arguing that it was “a disguised effort to conduct a successive collateral attack without this court’s permission, which §2255(h) requires.” The district court agreed, and dismissed the defendant’s motion for lack of jurisdiction.

Williams appealed, arguing that “Fed. R. Crim. P. 36 allows courts to correct clerical errors at any time.” Indeed, Rule 36 provides that “After giving any notice it considers appropriate, 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.” However, the Seventh Court held that the defendant’s sentence was not a “clerical error.” The court reasoned that “A request for a lower sentence, not authorized by a retroactive change in the Sentencing Guidelines, is treated as a motion under §2255 if it is within the scope of §2255(a), no matter what caption is on the document.” Pg. 2, citing Melton v. United States, 359 F.3d 855 (7th Cir. 2004). Accordingly the district court “properly treated this as a §2255 motion and dismissed it for want of jurisdiction.” Pg. 2-3.

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