United States of America v. Victor Pacheco

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR PACHECO,
Defendant - Appellant.
No. 11-10613
D.C. No. 5:01-cr-20050-EXE
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted June 26, 2012**
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Victor Pacheco appeals pro se from the district court’s order denying his
motion to amend the judgment pursuant to Federal Rule of Criminal Procedure 36.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Pacheco contends that the judgment should be corrected to reflect the district
FILED
JUL 02 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

11-10613 2
court’s intent for his sentence to run concurrently with an undischarged state
sentence. Specifically, he argues that, under U.S.S.G. § 5G1.3(b)(1), he is entitled
to credit for time served in state custody before he was convicted and sentenced in
federal court.
The district court properly denied Pacheco’s Rule 36 motion. See United
States v. Penna, 319 F.3d 509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for
correcting clerical mistakes but it may not be used to correct judicial errors in
sentencing.”) (emphasis in original); United States v. Kaye, 739 F.2d 488, 490 (9th
Cir. 1984) (“[T]he provisions of Rule 36 do not permit a substantive change in the
period of incarceration which the defendant must serve.”).
Pacheco’s request for appointment of counsel is denied.
AFFIRMED.

-- 2 of 2 --