Case: 14-13386   Date Filed: 05/01/2015   Page: 1 of 7


                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-13386
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 9:07-cr-80051-DTKH-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

JULIEN GARCON,
a.k.a. Johnathan Imgramham,
a.k.a. Julian Garcon,
a.k.a. Tedric Sherman,

                                                           Defendant-Appellant.
                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________
                                (May 1, 2015)


Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
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      Julien Garcon, proceeding pro se, appeals the district judge’s denial of his

motion to correct clerical errors in his presentence investigation report (“PSI”)

under Federal Rule of Criminal Procedure 36. We affirm.

                              I.      BACKGROUND

      In 2008, Garcon was convicted of unlawful possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(e) and (g). He was sentenced to

120 months of imprisonment. Garcon appealed his conviction; we affirmed.

United States v. Garcon, 349 Fed. Appx. 377 (11th Cir. 2009). Garcon filed a

motion to vacate under 28 U.S.C. § 2255 and two motions to reduce his sentence

under 18 U.S.C. § 3582(c)(2), none of which was successful.

      In July 2014, Garcon filed the Rule 36 motion that is the subject of this

appeal. Garcon’s sentencing proceedings and those proceedings related to his Rule

36 motion are relevant to this appeal.

A.    Sentencing

      According to Garcon’s original PSI, three firearms were uncovered in

connection with his crime: a Sig Sauer .40 caliber handgun, a Mossberg 12-gauge

shotgun, and an Intratec firearm. The Sig Sauer had been reported stolen. Garcon

received enhancements under U.S.S.G. § 2K2.1(b)(1)(A), because his crime

involved more than two but less than eight firearms, and § 2K2.1(b)(4)(A), because

one of the firearms was stolen. Garcon’s sentence also was enhanced under


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U.S.S.G. § 4B1.4(b)(3)(A), because he was classified as an armed-career criminal

under 18 U.S.C. § 924(e). He received a total of nine criminal-history points,

yielding a criminal-history category of IV. Because his PSI classified him as an

armed-career criminal, his criminal-history category was increased to VI. Among

the prior convictions for which he received criminal-history points were a 1992

manslaughter crime the PSI labeled as “Accessory to Manslaughter” and a 1995

battery-on-a-law-enforcement-officer crime. Based on his offense level of 34 and

criminal-history category of VI, Garcon’s Sentencing Guidelines range was 262 to

327 months of imprisonment. Under § 924(e)(1), Garcon’s mandatory-minimum

sentence was 15 years of imprisonment, with a maximum possible sentence of life

imprisonment.

      Garcon objected to the § 2K2.1(b)(1)(A) enhancement for an offense

involving more than two but less than eight firearms, because the indictment

mentioned only the Sig Sauer firearm. He also objected to the § 2K2.1(b)(4)(A)

enhancement for the stolen firearm, because the firearm was not included in the

count of conviction in the indictment. Finally, he objected to his classification in

the PSI as an armed-career criminal, because (1) he was convicted of being only an

accessory after the fact to manslaughter; (2) that conviction was not a violent

felony for purposes of § 924(e); and (3) without the manslaughter crime, he did not




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have the requisite three predicate convictions to qualify for the armed-career-

criminal enhancement.

      At sentencing, the district judge overruled Garcon’s objections to the

§ 2K2.1(b)(1)(A) enhancement for a crime involving more than two but less than

eight firearms and the § 2K2.1(b)(4)(A) enhancement for a stolen firearm. The

government noted, however, the PSI incorrectly indicated the Sig Sauer firearm,

rather than the Mossberg shotgun, was stolen. The district judge asked the

probation officer to make that correction in the PSI.

      To support his objection to his armed-career-criminal classification, Garcon

submitted copies of the judgment and commitment order from his manslaughter

crime, which showed the conviction was for being an accessory after the fact. The

district judge ultimately sustained the objection and found the manslaughter

conviction did not constitute a violent felony within the meaning of § 924(e)(1),

and the PSI improperly had imposed an armed-career-criminal enhancement.

      The district judge recalculated Garcon’s Guidelines range to be 168 to 210

months of imprisonment but, because his statutory-maximum penalty became 120

months of imprisonment following the judge’s sustaining his objection to the

§ 924(e) enhancement, that penalty became his Guidelines range. An amended PSI

showed the changes to the Guidelines calculations the judge had made at

sentencing, including deleting the paragraph stating Garcon was subject to the


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enhancement as an armed-career criminal, as well as clarifying the Mossberg

shotgun had been reported stolen, rather than the Sig Sauer firearm,.

B.     Rule 36 Motion

       In July 2014, Garcon filed the subject Rule 36 motion to correct clerical

errors in his PSI and raised four arguments. First, he argued the PSI erroneously

stated his crime involved between two and eight firearms. Garcon contended his

crime was limited to only one firearm. Second, he argued the PSI erroneously

stated the Sig Sauer firearm was stolen. Third, he concluded several of his prior

crimes were improperly used as bases for his criminal-history score, because they

were more than ten years old. Fourth, Garcon argued the PSI improperly had

failed to specify his prior conviction for manslaughter was for being an “accessory

after the fact.”

       The district judge denied Garcon’s Rule 36 motion. He explained Rule 36

could be used only to correct clerical errors and found Garcon improperly had

sought to make substantive changes to his PSI.

                                II.   DISCUSSION

       On appeal, Garcon raises the four arguments he raised in his Rule 36 motion

in district court. Regarding the fourth argument, he explains correcting the alleged

error in the PSI regarding his manslaughter crime would have no effect on his




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sentence, but would affect his Bureau of Prisons classification and facility

placement.

      We review de novo a district judge’s application of Rule 36. United States

v. Portillo, 

, 1164 (11th Cir. 2004). Under Rule 36, “[a]fter giving

any notice it considers appropriate, 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. We have

described clerical errors as “minor and mechanical in nature.” 

(explaining a district judge’s Rule 36 order changing the payees of

court-ordered restitution to conform to the judge’s oral sentencing pronouncement

was a correction of a clerical error). “It is clear in this Circuit that Rule 36 may not

be used to make a substantive alteration to a criminal sentence.” 

(citation and internal quotation marks omitted).

      The district judge correctly denied Garcon’s Rule 36 motion, because the

changes Garcon requested to his PSI were substantive, not clerical. See 

the objection at sentencing to the number of firearms involved in the crime,

resulting in the § 2K2.1(b)(1)(A) enhancement; the judge overruled it. Garcon’s

request his § 2K2.1(b)(1)(A) enhancement be removed from his PSI and his

Guidelines sentencing range be recalculated is not a “clerical error” but a

substantive matter he raised at sentencing; the judge rejected it. See Portillo, 363


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. To the extent Garcon is requesting his criminal history be

recalculated, Rule 36 is not appropriate for raising that claim. See 

. The change substantively would alter his Guidelines sentencing

range, which is not “minor and mechanical in nature.” See 

Garcon’s

request his PSI be corrected to show the Mossberg shotgun was stolen, rather than

the Sig Sauer firearm, is unnecessary, because the Amended PSI already has that

correction.

      We also conclude Rule 36 relief is not appropriate to change the

characterization of Garcon’s manslaughter crime in paragraph 24 of his amended

PSI to specify his conviction was for being an “accessory after the fact,” rather

than simply an “accessory.” The amended PSI already specifies that his conviction

is for being an “accessory” to manslaughter; therefore, the language in the PSI is

not erroneous. See Fed. R. Crim. P. 36. Moreover, all references to Garcon’s

classification as an armed-career criminal were removed from the Amended PSI,

and the judge’s sentence reflects he was not an armed-career criminal. Because

there is no error in the PSI regarding Garcon’s prior conviction for being an

accessory after the fact to manslaughter, Rule 36 relief is unavailing.

      AFFIRMED.




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