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United States v. Terry B. Carroll, 10-15542 (2011)

Court: Court of Appeals for the Eleventh Circuit Number: 10-15542 Visitors: 99
Filed: Jun. 13, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-15542 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 13, 2011 _ JOHN LEY CLERK D.C. Docket No. 3:99-cr-00021-RV-MD-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee, versus TERRY B. CARROLL, llllllllllllllllllllllllllllllllllllllllDefendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (June 13, 2
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                                                                    [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                    U.S. COURT OF APPEALS
                                 No. 10-15542         ELEVENTH CIRCUIT
                             Non-Argument Calendar        JUNE 13, 2011
                           ________________________        JOHN LEY
                                                            CLERK
                    D.C. Docket No. 3:99-cr-00021-RV-MD-1

UNITED STATES OF AMERICA,

                                     llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                       versus

TERRY B. CARROLL,

                                 llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                  (June 13, 2011)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Terry B. Carroll, proceeding pro se, appeals the district court’s denial of his

motion, pursuant to Fed.R.Crim.P. 36, to correct a purported error in his presentence
investigation report (“PSI”). Carroll argues that the district court erred in denying his

motion, because (1) the sentencing enhancements under U.S.S.G. §§ 3C1.2 and

3A1.2(b) are not supported by the record, (2) both enhancements relied on the same

conduct, resulting in double counting, and (3) he did not endanger the public by

fleeing on a public road or highway or at a high rate of speed. After thorough review,

we affirm.

      We review de novo the application of Rule 36 to correct a district court’s

sentencing judgment. United States v. Portillo, 
363 F.3d 1161
, 1164 (11th Cir. 2004).

We have made it clear that Rule 36 may not be used to make a substantive alteration

to a criminal sentence. 
Id. Instead, Rule
36 is properly applied to correct clerical

errors that are minor or technical in nature or to modify the written judgment to be

consistent with the oral sentencing announcement. 
Id. at 1164-65.
Generally, a

defendant who alleges that his PSI contains false information must raise that claim

at sentencing and on direct appeal, rather than for the first time in a post-conviction

proceeding. United States v. Peloso, 
824 F.2d 914
, 915 (11th Cir. 1987).

      Although Carroll contends that he is not attempting to challenge his sentence,

he is seeking to make a substantive change to the district court’s determination

regarding his sentence. The district court applied the enhancements, in paragraphs

30 and 32 of the PSI, after substantial discussion with both parties and after

                                           2
considering Carroll’s own recommendation, through counsel, that the district court

apply the enhancements to ensure a concurrent sentence. The PSI, without Carroll’s

requested modifications, correctly reflects the oral judgment of the district court. The

removal of paragraph 32 would substantively alter the sentencing guidelines

calculation of the district court, and thus, is an inappropriate use of Rule 36. 
Portillo, 363 F.3d at 1164
. Accordingly, we affirm.

      AFFIRMED.




                                            3

Source:  CourtListener

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