United States v. Harrill

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 31, 2004
• Docket: 03-10805
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 31, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10804 Summary Calendar

UNITED STATES OF AMERICA Plaintiff - Appellee

v.

DWIGHT LYNN HARRILL Defendant - Appellant

-------------------- Consolidated with No. 03-10805 --------------------

-------------------- Consolidated with No. 03-10806 --------------------

DWIGHT LYNN HARRILL Defendant - Appellant No. 03-10804 c/w Nos. 03-10805, 03-10806 and 03-10807 -2-

-------------------- Consolidated with No. 03-10807 --------------------

-------------------- Appeals from the United States District Court for the Northern District of Texas USDC No. 3:91-CR-68-R --------------------

Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

Dwight Lynn Harrill (Harrill), federal prisoner # 17843-077,

was convicted by a jury of conspiracy to distribute and possess

ephedrine knowing and having reasonable cause to believe it would

be used to manufacture methamphetamine. Harrill was also

convicted of use of a telephone to facilitate a drug transaction

and aiding and abetting in the possession of ephedrine knowing

and having reasonable cause to believe it would be used to

manufacture methamphetamine. Harrill filed four post-judgment

motions which the district court denied. Harrill appeals the

denial of these motions.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 03-10804 c/w Nos. 03-10805, 03-10806 and 03-10807 -3-

Harrill argues that the district court erred in denying his

motion to correct an error in the pre-sentence report (PSR)

pursuant to FED. R. CRIM. P. 32. The district court correctly

denied the motion because it lacked jurisdiction under Rule 32 to

consider Harrill’s motion. United States v. Engs, 884 F.2d 894,

895 (5th Cir. 1989). Complaints regarding contents of a PSR must

be raised prior to the imposition of sentence. Id. Harrill

argues in his reply brief that despite Engs, the district court

still has the power to issue a nunc pro tunc order correcting the

error in the PSR. However, this court will not consider issues

raised for the first time in a reply brief. United States v.

Brown, 305 F.3d 304, 307 n.4 (5th Cir. 2002).

motion to correct a clerical error in the judgment pursuant to

FED. R. CRIM. P. 36. Rule 36 provides that “the court may at any

time correct a clerical error in a judgment, order, or other part

of the record, or correct an error in the record arising from

oversight or omission.” FED. R. CRIM. P. 36 (emphasis added).

Harrill has failed to show how he has been harmed by the error.

Therefore, the district court did not abuse its discretion in

denying Harrill’s Rule 36 motion. United States v. Mueller, 168

F.3d 186, 188 (5th Cir. 1999).

Harrill further argues that the district court abused its

discretion in denying his motion for reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2). Harrill’s motion was based No. 03-10804 c/w Nos. 03-10805, 03-10806 and 03-10807 -4-

upon Amendments 371, 484, and 591 to the United States Sentencing

Guidelines. Harrill is not eligible for a reduction in his term

of imprisonment pursuant to § 3582(c)(2) because the Amendments

he relies upon would not reduce his sentence. 18 U.S.C.

§ 3582(c)(2); United States v. Towe, 26 F.3d 614, 616 (5th Cir.

1994). Thus, the district court did not abuse its discretion in

denying Harrill’s § 3582(c)(2) motion.

Harrill also argues that the district court abused its

discretion in denying his motion to recuse pursuant to 28 U.S.C.

§ 455(a). The statements made by the district court that Harrill

points to were made at the sentencing hearing. The district

court expressed its opinion regarding Harrill’s credibility based

upon the evidence and events that occurred during the course of

the judicial proceedings. Those remarks do not constitute a

basis for recusal under § 455(a). Liteky v. United States, 510

U.S. 540, 555 (1994).

AFFIRMED.