United States v. Christopher Niu

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10379

Plaintiff-Appellee, D.C. No. 1:06-cr-00594-SOM-4

v. MEMORANDUM* CHRISTOPHER NIU,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Christopher Niu appeals pro se from the district court’s order denying his

motion under Federal Rule of Criminal Procedure 36 to amend the presentence

investigation report (“PSR”). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Niu argues that the district court erred by declining to amend the PSR to

reflect the three-level aggravating role enhancement agreed to by the parties in the

plea agreement, rather than the four-level enhancement recommended by the

probation officer. We review for clear error the denial of a Rule 36 motion. See

United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985). Assuming without

deciding that Rule 36 applies to presentence reports, we conclude that the district

court did not clearly err because the change Niu sought was not a clerical change.

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.”). Furthermore, Niu did not show that the PSR was

erroneous. Niu’s contentions that the government breached the plea agreement and

that the district court erred by denying his motion for a sentence reduction also do

not provide a basis for relief under Rule 36. See Fed. R. Crim. P. 36; Penna, 319

F.3d at 513.

AFFIRMED.

2 17-10379