USA v. Takai

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
SIOSAIA TAKAI
Defendant.
MEMORANDUM DECISION AND
ORDER ON MOTION TO CORRECT
RECORD PURSUANT TO RULE 36
Case No. 2:11-cr-542-CW
Judge Clark Waddoups
On November 14, 2025, Defendant Siosaia Takai filed a motion to correct a
claimed error in his Presentence Investigation Report (“PSR”).1 [See ECF No. 183.]
According to Mr. Takai, his PSR should be “corrected” to reflect a total offense level
of 23 and a resultant Guidelines range sentence of 190 to 207 months. [See id. at 1.]
Mr. Takai cites Federal Rule of Criminal Procedure 36 as the sole basis to support
this corrective activity. For the reasons explained below, Mr. Takai’s Rule 36
motion is DENIED.
1 	The PSR was initially prepared on June 24, 2013, and revised on August 20, 2013.
[See PSR, ECF No. 121 (sealed).]
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BACKGROUND
In 2013, Mr. Takai was convicted of committing two separate Hobbs Act
robberies and a single charge of using, carrying, brandishing, and discharging a
firearm in relation to a crime of violence under 18 U.S.C. § 924(c). During the
course of one of those robberies, Mr. Takai shot a store clerk in the face, severely
injuring the clerk.
Foregoing a trial, Mr. Takai entered a plea agreement with the United
States. Among other things, his plea agreement called for the dismissal of Count II
of his Indictment, which charged him with a second § 924(c) firearms offense. [See
ECF No. 112 at 5.] The dismissal of this charge represented a reduction of a
minimum of 12 years in additional imprisonment. [See PSR, ECF No. 121 (sealed),
at 22 ¶73.] In return, and pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), Mr. Takai and the United States agreed to the imposition of a 240-
month sentence. [See ECF No. 112 at 5.] On August 20, 2013, the court accepted
that plea agreement and sentenced Mr. Takai to a term of 240 months. [See ECF
Nos. 118 & 119.]
ANALYSIS
Rule 36 is limited in its application. By its express terms it may only be used
to “correct a clerical error in the judgment, order, or part of the record, or correct an
error arising from oversight or omission.” FED. R. CRIM . P. 36. Consistent with this
limiting language, the Tenth Circuit has held that Rule 36 only allows for the
correction of “’non-substantive errors.’” See United States v. Gomez-Olivas, 672 Fed
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Appx. 887, 887 (10th Cir. 2017) (unpublished) (quoting United States v. Lonjose, 663
F.3d 1292, 1299 n.7 (10th Cir. 2011)); cf. United States v. Werber, 51 F.3d 342, 347–
48 (2d Cir. 1995) (noting that district court lacks jurisdiction under Rule 36 to
remedy “an error of law”). More specifically, the Tenth Circuit has explained that a
Rule 36 motion may not be used “’to challenge the substance of the information in a
presentencing report.’” Gomez-Olivas, 672 F. App’x at 887–88 (quoting United
States v. Simon, 36 F. App’x 415, 416 (10th Cir. 2002) (unpublished)).
In his Rule 36 motion, Mr. Takai asserts that the Adjusted Offense Level
calculated for his Hobbs Act conviction under Count 3 was in error because it
included a 7-level enhancement under U.S.S.G. § 2B3.1(b)(2)(A) for the discharge of
a firearm during a robbery. [See ECF No. 183 at 2.] He argues that the Adjusted
Offense Level should have instead been a level 24, and that after the appropriate
grouping of his Hobbs Act convictions under U.S.S.G. § 3D1.4, his Total Offense
Level for both Hobbs Act convictions under Counts 1 and 3 of his Indictment should
have been a level 23 (rather than a 29). The resulting Guidelines range sentence,
when combined with the 120-month statutory minimum consecutive firearm
sentence under Count 4, should have been 190 to 207 months instead of the 241 to
271 months calculated in the PSR. [See ECF No. 183 at 2–3.]2
Notably, Mr. Takai does not argue that this was some form of a clerical error.
2 	According to Mr. Takai it was error to include this specific offense characteristic
enhancement because U.S.S.G. § 2K2.4, comment n.4, precludes the use of any specific
enhancement for discharging a firearm when a defendant is also being sentenced for a
crime of using or discharging a firearm. [See ECF No. 183 at 2.] Because, as discussed
herein, this type of error is not one that can be addressed under Rule 36, the court has not
examined the merits of this argument.
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He does not argue that the math was wrong or that there was some transposition of
any numbers used in calculating his Adjusted Offense Level. Instead, he asserts
that the PSR’s inclusion of the firearm discharge enhancement was a “clear and
obvious” error that arose from an “oversight or omission.” [See ECF No. 183 at 1, 5.]
As a threshold matter, Mr. Takai nowhere in his motion cites any case in
which a similar claim of oversight or omission was corrected under Rule 36. In fact,
Rule 36 has been consistently interpreted to exclude errors arising from any
oversight or omission by the court—rather than traditional clerical errors—from its
purview. See United States v. Kieffer, 596 F. App’x 653, 660 (10th Cir. 2014)
(unpublished) (“Rule 36 is narrow, applying only to uncontroversial and non-
substantive clerical errors of the sort that a clerk or amanuensis might commit,
mechanical in nature.”) (internal quotations omitted); United States v. Blackwell, 81
F.3d 945, 948–49 (10th Cir. 1996) (“Rule 36 gives the court authority to correct
clerical-type errors ….”); see also United States v. Robinson, 368 F.3d 653, 656 (6th
Cir. 2004) (noting that Rule 36 is interpreted “as dealing only with clerical errors,
not with mistakes or omissions by the court”) (citation omitted); 3 CHARLES ALAN
WRIGHT & SARAH N. WELLING, F EDERAL P RACTICE AND P ROCEDURE § 641 at 773 &
n.16 (4th ed. 2011) (citing cases).
But even if he had done so, and even if a non-clerical omission or oversight
can be corrected under Rule 36, Mr. Takai does not explain how the deliberate
inclusion of a sentencing enhancement in his PSR can be deemed an “oversight” or
an “omission” under Rule 36.
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Oversight is defined as an “inadvertent omission or error.” See W EBSTER ’S
T HIRD N EW I NTERNATIONAL D ICTIONARY 1610 (1971). But here the firearm
discharge enhancement was not inadvertently added to the PSR but was
intentionally included—the polar opposite of inadvertence. Cf. United States v.
Cooper, 979 F.3d 1084, 1089 (5th Cir 2020) (noting that “Rule 36 does not cover
deliberate drafting choices, such as the deliberate wording of a pre-sentence report”)
(citation omitted). And Mr. Takai raises no argument, cites no case law, and has
presented no facts to support any inadvertence.
Nor is this an omission. Omission is defined as “something neglected or left
undone.” See WEBSTER ’S T HIRD N EW I NTERNATIONAL D ICTIONARY 1574 (1971). The
inclusion of the firearm discharge enhancement is by no means an omission, and
Mr. Takai makes no argument otherwise.
What is plain is that Mr. Takai’s beef with the PSR is that he claims it
contains a substantive legal error: the wrongful inclusion of the 7-level firearm
discharge enhancement. But the Tenth Circuit and many other authorities that
have addressed this issue have confirmed that Rule 36 does not provide any relief in
such a circumstance. See Gomez-Olivas, 672 F. App’x at 887 (holding that Rule 36
can only be used to correct non-substantive errors) (citing cases); see also United
States v. Daddino, 5 F.3d 262, 264 (7th Cir. 1993) (recognizing that “cases and
commentary flesh out the parameters of Rule 36 and demonstrate that this
exception does not apply to errors made by the court itself”) (citation omitted); see
also 26 MOORE 'S F EDERAL P RACTICE – CRIMINAL P ROCEDURE § 636.03 [1][a] (2025)
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(“Similarly, Rule 36 does not authorize the sentencing court to correct a sentence
imposed in violation of law, as a result of an incorrect application of the sentencing
guidelines, or to otherwise substantively modify sentences.”).
Simply put, the alleged error in calculating Mr. Takai’s Adjusted Offense
Level in not the type of mechanical error that may be corrected under Rule 36. See,
e.g., United States v. Contrera, 20-4083, 2022 WL 301784, at *2 (2d. Cir. Feb. 2,
2022) (unpublished) (holding that a claim that a PSR incorrectly calculated
Guidelines offense level by, among other things, improperly including a sentencing
enhancement is a substantive error not within the purview of Rule 36); see also
United States v. McKinney, No. 06-20078, 2025 WL 238866, at *2 (D. Kan. Jan. 17,
2025) (holding that errors in Guidelines calculations in a PSR are “outside the
ambit of Rule 36”) (citing cases).
Relief for this type of error, if at all available, may have been available under
different criminal procedural rules or under other specific statutory grants of
authority. See, e.g., Blackwell, 81 F.3d at 947–49 (identifying various rules and
statutes that might permit modification of the substantive terms of a sentence). For
example, Rule 35 allows for corrections of clear error at sentencing, but only if the
error is asserted within seven days after sentencing. See F ED. R. CRIM . P. 35.3 And,
perhaps more relevant here, to the extent a defendant has any objection to the PSR,
Rule 32 commands that such an objection is to be raised within 14 days after receipt
3 	By its terms Rule 35 allows for correction of a sentence that “resulted from … clear
error.” Rule 36, however, does not contain any “clear error” corrective reach.
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of the PSR or at the latest at sentencing. See F ED. R. CRIM . P. 32(f)(1) & (i)(1)(D);
see United States v. Eastteam, 426 F.3d 1301, 1303 (10th Cir. 2005); United States v.
Cosgrove, No. 00-20118, 2008 WL 5119679, at *1 (D. Kan. 2008). But Mr. Takia did
not raise an objection to the inclusion of the firearm discharge enhancement within
14 days after he received the PSR. Nor did he do so at or within seven days his
sentencing.
For all the reasons expressed above, the relief that Mr. Takai seeks is not
available under Rule 36. Accordingly, IT IS HERBEY ORDERED that Mr.
Takai’s Rule 36 motion [ECF No. 183] is DENIED.
DATED this 22nd day of December 2025.
BY THE COURT:
Hon. Clark Waddoups
United States District Judge
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