United States of America v. Ervin J. Robinson

*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2009 *
Decided May 6, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2917
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ERVIN J. ROBINSON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 92‐CR‐30020‐MJR
Michael J. Reagan,
Judge.
O R D E R
Ervin Robinson appeals the decision of the district court denying his motion under
Federal Rule of Criminal Procedure 36 to correct a purported clerical error. We affirm.
Robinson pleaded guilty in 1992 to distribution of and possession with intent to
distribute cocaine and marijuana, see 21 U.S.C. § 841(a)(1), participation in a continuing
criminal enterprise (“CCE”), see id. § 848, and other charges stemming from a decade‐long
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐2917 Page 2
drug‐trafficking operation. After a successful appeal, see Robinson v. United States, 6 Fed.
App’x 359 (7th Cir. 2001), Robinson was resentenced in 2001. At resentencing the district
court included in the calculation of his criminal history a prior drug conviction that had also
been used to establish his CCE offense. Robinson challenged the sentence again, arguing
that the conviction could not be used for both purposes. We rejected Robinson’s argument
and affirmed his sentence. See United States v. Robinson, 68 Fed. App’x 724 (7th Cir. 2003).
After an unsuccessful motion to modify his sentence under 18 U.S.C. § 3582(c)(2),
Robinson tried yet another angle: in June 2008 he filed a motion under Rule 36, which
permits a district court to correct a clerical error in a judgment at any time. See FED. R. CRIM .
P. 36. According to Robinson, the prior drug conviction used to establish his CCE offense
and compute his criminal history category also enhanced the statutory maximum penalty
for his conviction under 21 U.S.C. § 841(a)(1). Robinson asserts that this is “impermissible
double counting,” and characterizes the purported error as clerical.
Robinson misunderstands the phrase “clerical error,” which, in the sentencing
context, is a clerk’s failure to accurately record the sentence pronounced from the bench in
open court. See United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006); United States v.
Smith, 438 F.3d 796, 799‐800 (7th Cir. 2006). Robinson does not contend that his sentence
was improperly transcribed; the “error” he complains of is substantive. Rule 36 is not a
vehicle for raising substantive challenges to a sentence, see Eskridge, 445 F.3d at 934, and the
district court was therefore correct to deny Robinson’s motion.
AFFIRMED.

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