Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2005

USA v. Sanchez-Sanchez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2066




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Recommended Citation
"USA v. Sanchez-Sanchez" (2005). 2005 Decisions. Paper 571.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/571


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CPS-309                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  No. 05-2066
                               ________________

                        UNITED STATES OF AMERICA

                                        v.

                        DOMINGO SANCHEZ-SANCHEZ,
                           a/k/a RAFAEL BATISTA,
                                  a/k/a PASAL

                             Domingo Sanchez-Sanchez,

                                         Appellant
                               ________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                             (D.C. Crim. No. 98-cr-0020)
                  District Judge: Honorable Ronald L. Buckwalter
                                 ________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 July 21, 2005

              Before:   ALITO, MCKEE and AMBRO, Circuit Judges

                            (Filed: September 6, 2005)
                                ________________

                                   OPINION
                               ________________

PER CURIAM

     Domingo Sanchez-Sanchez appeals the District Court’s order granting his motion
filed under Rule 36 of the Federal Rules of Criminal Procedure. In June 1998, Sanchez-

Sanchez pled guilty to several counts of drug distribution and firearm charges. In

February 1999, the District Court imposed an aggregated sentence of 292 months. On

March 18, 2005, Sanchez-Sanchez filed his Rule 36 motion and argued that the docket

entries reflected that he was only sentenced to an aggregated sentence of 172 months.

The District Court granted the motion and directed the Clerk to correct the docket entries

to show the correct sentences on each count. Sanchez-Sanchez filed a timely notice of

appeal, and we have jurisdiction under 28 U.S.C. § 1291.

       Sanchez-Sanchez argues on appeal that the District Court entered a sentence more

onerous than that which he believes he was given at sentencing. At his sentencing, the

District Court pronounced Sanchez-Sanchez’s sentence as 292 months. The District

Court stated in the criminal judgment that the sentence was 292 months. In our opinion

affirming the conviction and sentence, we stated that Sanchez-Sanchez was sentenced to

292 months. In his motion filed pursuant to 28 U.S.C. § 2255, Sanchez-Sanchez stated

that he was sentenced to 292 months. In denying that § 2255 motion, the District Court

noted that Sanchez-Sanchez was sentenced to 292 months. For Sanchez-Sanchez to now

argue that he believes his sentence is lower is disingenuous.

       Sanchez-Sanchez contends that it was his understanding that he was sentenced to

120 months on counts one and eleven (distribution of cocaine base) to be served

concurrently. However, the criminal judgment and the transcript of sentencing show that

Sanchez-Sanchez was sentenced to 240 months on counts one and eleven with these

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sentences running concurrently to each other. He was also sentenced to 52 months on

count twelve (distribution of heroin) to run consecutive to the sentence at count one. On

counts sixteen and eighteen (firearm charges), Sanchez-Sanchez was sentenced to 120

months on each count to run concurrently to the sentence at count one. Thus, this

argument is also without merit.

       Sanchez-Sanchez further asserts that the granting of the Rule 36 motion entitles

him to review of his sentence under United States v. Booker, 

(2005).

However, the purpose of Rule 36 is to correct clerical errors. Neither the sentence nor the

criminal judgment has been amended, and Sanchez-Sanchez has not been resentenced;

only the docket entries were corrected. This does not entitle Sanchez-Sanchez to further

appellate review of his sentence. An application to file a second or successive § 2255

motion would be the proper vehicle for such an argument; however, unless Booker is

made retroactive to cases on collateral review by the Supreme Court, such an application

is without merit. See In re Olopade, 

(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. Sanchez-Sanchez’s motion for the appointment of counsel is denied.




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