DLD-109                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2964
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                     GARY RHINES
                                  a/k/a Derrick Upshaw
                                   a/k/a Gary R. Allen
                                   a/k/a Robert Camby

                                    Gary Rhines,
                                               Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Crim. No. 4-01-cr-00310-001)
                      District Judge: Honorable John E. Jones III
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 12, 2015
             Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges

                            (Opinion filed: February 17, 2015)
                                        _________

                                        OPINION*
                                        _________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Gary Rhines appeals the District Court’s order denying his motion filed pursuant

to Fed. R. Crim. P. 36 as well as his request for counsel. For the reasons below, we will

summarily affirm the District Court’s order.

       In 2002, Rhines was convicted of possession with intent to distribute fifty grams

of cocaine base. Because he had two prior convictions for felony drug offenses, he

received a mandatory sentence of life in prison. We affirmed the conviction and

sentence, see United States v. Rhines, 143 F. App’x 478 (3d Cir. 2005), and the Supreme

Court denied certiorari, see Rhines v. United States, 

(2006). In August

2013, Rhines filed a motion to correct a clerical error pursuant to Fed. R. Crim. R. 36.

He later requested that counsel be appointed to assist him in filing for commutation of his

sentence or a pardon. The District Court denied the Rule 36 motion and the request for

counsel, and Rhines filed a notice of appeal. We have jurisdiction under 28 U.S.C.

§ 1291.

       The District Court believed that Rhines’s request for counsel was based on the

Attorney General’s proposed amendments to the Sentencing Guidelines for drug

offenses. See Dep’t of Justice, Office of Pub. Affairs, Attorney General Holder Urges

Changes in Federal Sentencing Guidelines, (Mar. 13, 2014)

http://www.justice.gov/opa/pr/attorney-general-holder-urges-changes-federal-sentencing-




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guidelines-reserve-harshest. Under 18 U.S.C. § 3582(c)(2), a District Court has the

authority to amend a sentence if it was based on a Guidelines range that has been

lowered. Because the proposed amendments had not yet been passed or retroactively

implemented, the District Court denied Rhines’s request for counsel as premature. We

agree and note that the sentence here was not based on the Sentencing Guidelines:

Rhines’s mandatory life sentence was required by statute. See 21 U.S.C. § 841(b)(1)(A).

       Under Fed. R. Crim. R. 36, a District Court may correct a clerical error in a

judgment at any time. Rhines contended that there is a conflict between his criminal

judgment which lists August 24, 2001, as the date the offense concluded, and a computer

printout from what appears to be the Bureau of Prison’s sentence computation that lists

his jail credit as starting on August 23, 2001. The District Court denied the Rule 36

motion on the ground that Rhines is serving a life sentence and a difference of one day in

when the sentence began does not change how his sentence is effectuated.

       Rhines does not claim that the alleged mistake has prejudiced him in any way or

explain why the computer printout from a sentence computation should be considered the

more accurate source. The computer printout also lists August 24th as the “earliest date

of offense.” We note that in the indictment, the grand jury alleged that on or about

August 24, 2001, Rhines employed a person under the age of eighteen to distribute

cocaine base. Thus, Rhines’s alleged arrest on August 23, 2001, would not necessarily

conclude the offense since another person was involved. Further, the alleged error here




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does not involve a failure to accurately record an action or statement by the District

Court. See United States v. Bennett, 

, 277-78 (3d Cir. 2005).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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