United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN O UNITED STATES DISTRICT JUDGE.
before the Court is defendant's Motion to Correct
Clerical Error pursuant to Fed. R. Crim. P. 36 (Dkt. # 218).
Defendant asks the Court to correct clerical errors in the
enhancement information (Dkt. # 33) and the amended
enhancement information (Dkt. # 69) that were filed pursuant
to 21 U.S.C. § 851. Dkt. # 218. It does not appear that
defendant is asking the Court to resentence him or vacate his
convictions, and the Court will not construe defendant's
motion as a second or successive § 2255
6, 2002, a grand jury returned an indictment charging
defendant with conspiracy to violate the federal drug laws
(count one), possession of marijuana with intent to
distribute (count two), two counts of distribution of cocaine
base (counts three and four), maintaining a premises for the
purpose of manufacturing, storing, and distributing cocaine
and cocaine base (count five), and two counts of traveling in
interstate commerce to promote the unlawful distribution of
cocaine, cocaine base, and marijuana (counts six and seven).
Dkt. # 1. Plaintiff filed an enhancement information (Dkt. #
33) stating that defendant had two prior convictions for the
distribution of illegal drugs and defendant was subject to
increased punishment if convicted of count one, two, three,
or four. Defendant exercised his right to a jury trial and
was convicted of counts one, two, and six.Plaintiff filed an
amended enhancement information (Dkt. # 69) correcting the
dates of conviction of defendant's prior offenses and the
statutory citations to the offenses charged in the
indictment. The sentencing judge sentenced defendant to life
imprisonment on count one, 120 months on count two, and 60
months on court six. Dkt. # 84. Defendant filed a direct
appeal of his conviction and sentence, a motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255,
and numerous post-conviction motions, and all of
defendant's efforts to overturn his criminal convictions
or reduce his sentence have been unsuccessful.
asks the Court to correct a “clerical error”
pursuant to Fed.R.Civ.P. 36, which provides that
“[a]fter giving any notice it considers appropriate,
the court may at any time correct a clerical error in a
judgment . . . .” The Tenth Circuit has explained that
Rule 36 does not give a district court authority to make
substantive changes to a defendant's sentence, but Rule
36 can be used to bring a written order and judgment into
conformity with the oral pronouncement of a defendant's
sentence. United States v. Blackwell, 81 F.3d 945,
948-49 (10th Cir. 1996); United States v. Sasser,
974 F.2d 1544, 1561 (10th Cir. 1992). “A clerical error
must not be one of judgment or even of misidentification, but
merely of recitation, of the sort that a clerk or amanuensis
might commit, mechanical in nature.” United States
v. Penson, 526 F.3d 331, 335 (6th Cir. 2008).
argues that enhancement information contained an incorrect
statutory citation and incorrect dates of conviction, and he
asks the Court to correct these clerical errors. It is
undisputed that there were clerical errors in the original
enhancement information (Dkt. # 33). The original enhancement
information listed two prior convictions and incorrectly
stated that the date of conviction was October 2, 2002 for
the prior convictions. Dkt. # 33. The enhancement information
also incorrectly stated that defendant was charged with an
offense in violation of 21 U.S.C. §§ (b)(1)(iv) and
(b)(1)(viii). Id. Plaintiff filed a motion to amend
the enhancement information to correct the dates of
conviction to October 2, 1992 for both prior convictions.
Dkt. # 64. Plaintiff was permitted to file an amended
enhancement information correcting the date of conviction,
and the amended enhancement information also corrected the
statutory citation for the charged offenses to 21 U.S.C.
§§ (b)(1)(ii) and (b)(1)(iii). Dkt. # 69. However,
the enhancement information still included an unnecessary and
incorrect citation to 21 U.S.C. § 841(b)(1)(viii).
is correct that the original enhancement information
contained several errors, but the errors were corrected in
the amended enhancement information. The amended enhancement
information contains a superfluous reference to 21 U.S.C.
§ 841(b)(1)(viii), but defendant has not shown that this
prejudiced him in any way or that there is any need to
correct this error more than sixteen years after the
sentencing hearing took place. The purpose of an enhancement
information is to “notify the defendant of the
government's intention to use a prior offense to enhance
his sentence” and to give the defendant an opportunity
to challenge the sentencing enhancement. United States v.
Balderama-Iribe, 490 F.3d 1199, 1205 (10th Cir. 2007).
The amended enhancement information accurately provided
defendant notice about the basis for a sentencing
enhancement, and defendant's attorney filed a sentencing
memorandum challenging the sentencing enhancement on multiple
grounds. Dkt. # 80, at 30-46. The Court finds no reason
correct the original or amended enhancement informations, and
defendant's motion (Dkt. # 218) should be denied.
IS THEREFORE ORDERED that defendant's Motion to
Correct Clerical Error pursuant to Fed. R. Crim. P. 36 (Dkt.
# 218) is denied.
 Defendant is advised that if he is
actually seeking to have any charges dismissed or if he is
seeking a reduction of his sentence based on an alleged
clerical error that he will have to request leave from the
Tenth Circuit to proceed with a second or successive 28
U.S.C. § 2255 motion. Defendant's motion would
qualify as a second or successive § 2255 motion if he
were seeking substantive relief, and the Court would lack
jurisdiction over such a motion.
 The jury found defendant not guilty of
count seven but could not reach a verdict as to counts three,