United States v. Falasha Ali

654 F. App'x 322

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2016
• Docket: 15-10033
• Status: Unpublished

Opinion

MEMORANDUM **

Falasha Ali appeals pro se from the district court’s order denying his “Motion for Correction of Clerical Error and Omission Pursuant to Federal Rule of Criminal Procedure 36.” We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court correctly concluded that Federal Rule of Criminal Procedure 36 does not permit Ali to challenge the criminal history calculation in his presen-tence report or the court’s competency finding. See United States v. Penna, 319 F.3d 609, 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.”). The district court also correctly concluded that it lacked authority to modify the presentence report under Federal Rule of Criminal Procedure 32. See United States v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989) (“[OJnee the district court has imposed sentence, the court lacks jurisdiction under Rule 32 to hear challenges to a presentence report.”).

The district court properly treated Ali’s remaining claims as a second or successive motion under 28 U.S.C. § 2255, for which he did not obtain preauthorization from this court, as required by Section 2255(h).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.