United States v. Stone

Opinion

UNITED STATES COURT OF APPEALS Filed 10/23/96 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-8039 v. (D.C. No. 94-CR-139) (District of Wyoming) MICHAEL RAYMOND STONE,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, KELLY and LUCERO, Circuit Judges.

Defendant Michael Raymond Stone, appearing pro se, appeals the district

court’s denial of his “Motion to Correct Error in Pre-Sentence Report.” We

affirm.

In July 1995, the district court sentenced defendant to seventy months

imprisonment for manufacturing and distributing methamphetamine, and

conspiring to possess with intent to distribute methamphetamine. Defendant did

not file a direct appeal.

* The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Nine months after he was sentenced, defendant filed a motion to correct

errors in his presentence report. R. Supp., doc. 243. He claimed that three points

had been erroneously added to his criminal history for a criminal charge that was

dismissed after his sentencing in the present case. Id. He asked the district court

to recalculate his guideline score and to resentence him at the bottom of the

applicable guideline range. Id. The district court denied the motion after

determining that the three points were properly assessed. I R., doc. 246 at 2.

On appeal, defendant claims that the district court erred in refusing to

correct the criminal history calculation in the presentence report. Defendant

argues, as he did before the district court, that the error affects his sentence.

Also, he claims a right to a corrected presentence report because of the adverse

consequences that will flow from an inaccurate report, particularly with regard to

decisions made by the Bureau of Prisons. Defendant claims that the lack of

discretion in sentencing results in statements by the trial courts such as: “Sorry I

have to sentence you to life for smoking that joint Suzy but my hands are tied.”

Thus, he tells us, accurate reporting of prior convictions is imperative.

We have previously ruled that after the district court has imposed a

sentence, it lacks jurisdiction to correct a presentence report under Fed. R. Crim.

P. 32. See United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994).

-2- Therefore, the district court properly denied defendant’s motion to correct the

presentence report.

Defendant requests that we construe his motion to correct the presentence

report as a motion to correct his sentence under 28 U.S.C. § 2255. Because the

district court did not treat the motion as one under § 2255, we do not do so on

appeal. A motion to correct a sentence under § 2255 should be filed with the

district court, Fed. R. App. P. 22(a), generally within one year of the date the

conviction becomes final, § 2255. With limited exceptions, a defendant may file

only one § 2255 motion. See id. Therefore, a defendant should join all grounds

for attacking his sentence in a single § 2255 motion. We do not comment on the

relief that may be available to Stone under § 2255, but leave that matter to the

district court, should defendant file such a motion.

AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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