USA v. Charles Horton

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14220
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES HORTON,
a.k.a. Charlie Horton,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 22-14220
D.C. Docket No. 1:11-cr-00427-TWT-AJB-1
____________________
Before ROSENBAUM, A BUDU , and A NDERSON , Circuit Judges.
PER CURIAM:
Charles Horton is a federal prisoner serving a total 205-
month sentence for unlawfully possessing and transporting fire-
arms and making false statements to a firearms dealer. He appeals
the denial of his counseled motion to correct an alleged error in his
presentence investigation report (“PSR”) under Federal Rule of
Criminal Procedure 36. He claims that the PSR wrongly attributed
his brother’s one-year probation-violation sentence to him, which
caused an erroneous criminal-history category and guideline range.
Because this error is not a “clerical” one that can be corrected under
Rule 36, we affirm the district court’s denial of Horton’s motion.
I.
Before his sentencing in 2012, a probation officer prepared
Horton’s PSR which, among other things, surveyed his criminal
history and calculated his criminal-history category for the guide-
line range. As relevant here, Horton and his brother were con-
victed of petit larceny in New York in 1995, and Horton was sen-
tenced to three years of probation. According to the PSR, he vio-
lated his probation several months later and was sentenced to one
year in custody in June 1995. Then, in May 1997, he violated his
probation again and was sentenced to six months in custody. The
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22-14220 Opinion of the Court 3
PSR aggregated the two sentences (18 months) and added three
criminal-history points for the 1995 conviction.
Horton objected that he “only received a [violation-of-pro-
bation] sentence of six months in this case.” When the issue arose
at sentencing, the district court attempted to clarify whether the
total sentence was “six months plus the year, or . . . just a total of
six months.” The probation officer advised that the PSR was sup-
ported by court records. The government responded that it didn’t
object “to just counting it as a two point instead of three points,”
since Horton would still fall within criminal-history category V.
And Horton’s counsel agreed with the court that Horton would
still “get[] two points” for the six-month sentence because it ex-
ceeded 60 days. Neither Horton nor his counsel suggested that the
one-year sentence belonged to his brother and not to him.
Accordingly, the district court sustained Horton’s objection
in part and assigned two points in relation to the 1995 conviction.
This, among other convictions, led to a criminal-history-point total
of 11 and a criminal-history category of V. The district court sen-
tenced Horton to a total of 205 months, within the guideline range
of 188 to 235 months. Horton appealed, raising issues not relevant
to this appeal, and we affirmed. United States v. Horton, 522 F. App’x
456, 458 (11th Cir. 2013).
In 2015, Horton filed a pro se 28 U.S.C. § 2255 motion to va-
cate. In the motion, he raised, for the first time, his contention that
the PSR mistakenly attributed his brother’s one-year term of
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4 Opinion of the Court 22-14220
incarceration for violating probation in 1995 to him, incorrectly
raising his criminal-history category from IV to V.
The district court denied the motion in 2017, concluding
that Horton had not established a claim of ineffective assistance in
relation to the asserted error. Then, in 2021, the court denied Hor-
ton’s pro se Rule 36 motion raising the same issue and seeking re-
sentencing under the correct guideline range, as well as a subse-
quent request to amend the PSR. And in 2022, this Court denied
multiple requests by Horton to file another § 2255 motion raising
the same basic argument.
In December 2022, Horton filed a counseled motion under
Rule 36 raising the same issue about his criminal history. And he
attached documentation supporting his position that the PSR
wrongly attributed his brother’s one-year revocation sentence to
him.1 With that sentence removed, he maintained, his six-month
revocation would not have counted for any criminal-history points
because of its age. Horton requested a court order directing the
U.S. Probation Office to correct the PSR—deleting the reference to
his brother’s 1995 revocation and recalculating his criminal-history
1 The documentation appears to include a state court “Certificate of Convic-
tion or Discharge” for Horton’s brother, James Horton, which reflects the rev-
ocation sentence that was included in Horton’s PSR, as well as a letter from a
probation supervisor in Erie County, New York, which describes the disposi-
tion of both Horton’s case and his brother’s case in terms consistent with Hor-
ton’s position in this case.
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22-14220 Opinion of the Court 5
points and criminal-history category—and to send the amended
document to the Bureau of Prisons (“BOP”).
The district court, noting that it had previously rejected the
same claim, denied the motion because it was “in essence a succes-
sive Motion to Vacate Sentence which requires permission from
the Court of Appeals.” Horton appeals.
II.
Whether relief is available under Rule 36 is an issue of law
that we review de novo. United States v. Portillo, 363 F.3d 1161, 1164
(11th Cir. 2004). Rule 36 allows a court “at any time [to] correct a
clerical error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight of omission.”
Fed. R. Crim. P. 36.
“Clerical” errors correctible under Rule 36 are “minor and
mechanical in nature,” not substantive errors of law. See Portillo,
363 F.3d at 1164–65. For example, clerical errors may include arith-
metic mistakes, United States v. Edwards, 728 F.3d 1286, 1297 n.8
(11th Cir. 2013), misstated statute numbers, United States v. James,
642 F.3d 1333, 1343 (11th Cir. 2011), or discrepancies between a
district court’s oral and written judgments, Portillo, 363 F.3d at
1164. But Rule 36 may not be used “to make a substantive altera-
tion to a criminal sentence.” Id.
Here, we cannot say that the district court erred in denying
Horton’s motion as beyond the scope of Rule 36. Horton’s request
for recalculation of his guideline range and resentencing is incon-
sistent both with the underlying facts and our precedent.
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6 Opinion of the Court 22-14220
For starters, Horton is incorrect that the PSR’s alleged fac-
tual error regarding his 1995 larceny conviction—wrongly attrib-
uting his brother’s one-year revocation sentence to him—led to a
higher criminal-history category and guideline range. As he repeat-
edly notes, the record shows that the sentencing court did not
adopt or rely on the PSR’s factual error. Rather, in response to
Horton’s objection that he received only a six-month custodial sen-
tence for the 1995 larceny conviction, the government conceded
the issue, and the district court sustained Horton’s factual objec-
tion. Then, applying the guidelines, the court counted the convic-
tion—with Horton’s counsel’s apparent consent—for two points
(based on a six-month sentence), instead of three (based on an 18-
month total sentence). Where the court went awry, in Horton’s
telling, was in failing to “realize[]” the legal significance of its own
factual ruling—that is, that the 1995 conviction, as a two-point of-
fense, was too old to count for criminal-history points under
U.S.S.G. § 4A1.1. In other words, Horton asserts the court made a
legal error, not a factual one.
But the problem is that Horton’s arguments cannot reason-
ably be construed as anything other than substantive challenges to
the district court’s material factual findings or legal conclusions
when calculating his criminal-history category and guideline range.
Under our precedent, we cannot say that the relief Horton sought
falls into the category of “minor” or “mechanical” changes that
Rule 36 authorizes. Rather, Horton sought the kind of “substantive
alteration to a criminal sentence” forbidden by our precedent. Por-
tillo, 363 F.3d at 1164. Rule 36 is not an appropriate mechanism for
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22-14220 Opinion of the Court 7
raising such substantive challenges to the calculation of his guide-
line range. See id.
While Horton contends that Rule 36 permits correction to
“match[] the intent and oral findings of the court at the sentencing
hearing,” he does not identify any such mismatch needing correc-
tion. The fact that a PSR contains a factual statement that the dis-
trict court declined to adopt does not establish a “clerical” error
within the meaning of Rule 36. See, e.g., United States v. Ramirez-
Gonzalez, 840 F.3d 240, 247 (5th Cir. 2016) (“The district court sus-
tained some . . . objections and declined to adopt portions of the
PSR in the final judgment . . . , but that does not render the una-
dopted content of the PSR a ‘clerical error.’”). And Horton does
not suggest that the record otherwise fails to reflect the court’s rul-
ing on his objection and so needs to be corrected for that reason.
See, e.g., FED . R. C RIM. P. 32(i)(3)(C) (requiring sentencing court to
“append a copy of the court’s determinations . . . to any copy of the
presentence report made available to the [BOP]”).
Because sentencing relief Horton sought was substantive
and fell outside the limited scope of Rule 36, we must affirm the
district court’s denial of his Rule 36 motion.
AFFIRMED.
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