United States v. James Phillips, III

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 27, 2025
• Docket: 24-12545
• Status: Unpublished

Opinion

USCA11 Case: 24-12545 Document: 32-1 Date Filed: 06/27/2025 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-12545 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES EDWARD PHILLIPS, III,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:18-cr-00142-BJD-MCR-1 ____________________ USCA11 Case: 24-12545 Document: 32-1 Date Filed: 06/27/2025 Page: 2 of 5

2 Opinion of the Court 24-12545

Before JORDAN, LUCK, and ANDERSON, Circuit Judges. PER CURIAM: James Edward Phillips, III, a federal prisoner proceeding pro se, appeals the denial of his post-judgment motion to correct his Presentence Investigation Report (“PSI”). He argues that the dis- trict court erroneously construed his motion as a request for a sen- tence reduction and abused its discretion by denying the motion without addressing whether his criminal history score was miscal- culated. We review de novo legal questions concerning federal crimi- nal statutes and the Federal Rules of Criminal Procedure. See United States v. Rojas, 718 F.3d 1317, 1319 (11th Cir. 2013); United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006). For the reasons which follow, we conclude that the district court did not have ju- risdiction to consider Mr. Phillips’ motion. As relevant here, 18 U.S.C. § 3582(b) provides that a judg- ment of conviction that includes a sentence of imprisonment is fi- nal, but the sentence can be “modified” pursuant to § 3582(c), “cor- rected” pursuant to Rule 35 and 18 U.S.C. § 3742, and “appealed and modified” if outside the guideline range pursuant to § 3742. Under § 3582(c)(1), a district court may “reduce” a sentence if cer- tain requirements are met under § 3582(c)(1)(A), or “modify” a term of imprisonment to the extent that modification is “expressly permitted by statute” or by Rule 35 under § 3582(c)(1)(B). And un- der § 3582(c)(2), a district court may reduce a defendant’s term of USCA11 Case: 24-12545 Document: 32-1 Date Filed: 06/27/2025 Page: 3 of 5

24-12545 Opinion of the Court 3

imprisonment if the defendant was sentenced based on a sentenc- ing range that has been subsequently lowered by the Sentencing Commission. Mr. Philipps asserts that he is not seeking to challenge, cor- rect, alter, or modify his sentence, so the statutory provisions sum- marized above are not relevant. He says that he wants to correct his criminal history score because it affects his “program progress” while incarcerated, impacts his risk assessment, and prevents him from applying certain credits. Federal Rule of Criminal Procedure 32 governs the prepara- tion of PSIs. Rule 32 provides the timeframe for giving a defendant notice of the PSI and a 14-day deadline to submit written objections to the PSI. It also states that, for any disputed portion of the PSI, the sentencing court must “rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sen- tencing, or because the court will not consider the matter in sen- tencing.” Fed. R. Crim. P. 32(e), (f)(1), (i)(3)(B). Rule 32, standing alone, does not confer jurisdiction on the district court to consider a post-judgment motion to correct a PSI. See United States v. Fischer, 821 F.2d 557, 558 (11th Cir. 1987); United States v. Peloso, 824 F.2d 914, 915 (11th Cir. 1987). Where the dis- trict court does not have jurisdiction over a Rule 32 claim, it must dismiss the motion. See Fischer, 821 F.2d at 558-59 (remanding with instructions to dismiss for lack of jurisdiction where the district court denied a Rule 32 motion). USCA11 Case: 24-12545 Document: 32-1 Date Filed: 06/27/2025 Page: 4 of 5

4 Opinion of the Court 24-12545

The correct procedure is to raise a Rule 32 violation on di- rect appeal. See Peloso, 824 F.2d at 915. Other options for pursuing this type of claim include filing a Rule 35 motion within the appli- cable timeframe, a 28 U.S.C. § 2255 motion, or a 28 U.S.C. § 2241 petition. See id. Because Mr. Philipps is not currently contesting his conviction or sentence, however, none of these procedural ve- hicles apply. Under Federal Rule of Criminal Procedure 36, the district court may, at any time, correct a clerical error or an error in the record arising from oversight or omission. But Rule 36 does not provide a court independent jurisdiction to consider the merits of an alleged error that is more than “minor and mechanical in na- ture.” United States v. Portillo, 363 F.3d 1161, 1164-65 (11th Cir. 2004). In other words, Rule 36 may not be used “to make a sub- stantive alteration to a criminal sentence” or correct errors of law and is instead a remedy to rectify non-substantive errors, such as when the written judgment unambiguously conflicts with the oral pronouncement of sentence. See id. (quotation marks omitted). Cf. United States v. Mackay, 757 F.3d 195, 196, 200 (5th Cir. 2014) (hold- ing that a defendant convicted of a marijuana offense could use Rule 36 to correct the PSI, which incorrectly stated that he was convicted of a cocaine offense). We have repeatedly held that a request to change a criminal history score (here from criminal history category VI to criminal history category V) cannot be made through Rule 36. See, e.g., United States v. Garcon, 611 F. App’x 943, 945 (11th Cir. 2015); United USCA11 Case: 24-12545 Document: 32-1 Date Filed: 06/27/2025 Page: 5 of 5

24-12545 Opinion of the Court 5

States v. Scott, 327 F. App’x 850, 851 (11th Cir. 2009). Those prior decisions, though unpublished are persuasive, and we see no rea- son to depart from them here. The district court did not have jurisdiction to consider Mr. Phillips’ motion to correct the PSI because no statute or legal rule provided it with the authority to consider the relief sought. See United States v. Kaiser, 50 F.Supp.3d 200, 203-04 (E.D.N.Y. 2014) (district court lacked jurisdiction under Rules 32 and 36 to consider the defendant’s motion to attach certain documents to the PSI). Because the district court denied, rather than dismissed, Mr. Phil- lips’ motion, we vacate and remand for the court to dismiss the motion for lack of jurisdiction. VACATED & REMANDED WITH INSTRUCTIONS.