United States v. Tracy McKenzie

637 F. App'x 447

Opinion

MEMORANDUM *

Rule 36 of the Federal Rules of Criminal Procedure allows a district court to correct “a clerical error” in a judgment. Fed. R.Crim.P. 36. McKenzie argues that when the district court entered the judgment in his case, she “erred” by failing to award him credit for the .time he spent in state custody prior to the date he was to begin serving his federal sentence. But the district court had no authority to award McKenzie credit for time served, even had she wanted to; only the Attorney General, through the Bureau of Prisons, may grant defendants credit for time served prior to the start of their federal sentences. United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Peters, 470 F.3d 907, 909 (9th Cir.2006). The district court’s failure to do something she was forbidden from doing was not an “error”— clerical or otherwise — that can be “corrected” via Rule 36.

That is not to say that McKenzie has no right to judicial process if he believes he has been wrongly denied credit for time he served prior to the start of his federal sentence. But Rule 36 is not the proper mechanism to assert his right to such cred it. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984).

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.