Case: 14-10971      Document: 00512926529         Page: 1    Date Filed: 02/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10971
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 4, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ANTHONY SALAZAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CR-113-1


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Anthony Salazar, federal prisoner # 33813-177, pleaded guilty to
possession with intent to distribute a mixture and substance containing
methamphetamine. Following an unsuccessful direct appeal and the denial of
his 28 U.S.C. § 2255 motion, Salazar moved to correct a purported clerical error
in his presentence report (PSR) and the judgment pursuant to Federal Rule of
Criminal Procedure 36. He asserted that the PSR erred by assessing criminal


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-10971     Document: 00512926529      Page: 2   Date Filed: 02/04/2015


                                  No. 14-10971

history points on two prior convictions, which he claimed were related offenses.
The district court denied the Rule 36 motion, stating that “[t]he time to object
to the PSR and appeal the judgment in this case has long since passed.” The
district court also denied leave to proceed in forma pauperis (IFP) on appeal,
certifying that the appeal would be frivolous and not taken in good faith.
Salazar now seeks leave from this court to proceed IFP on appeal.
      Rule 36 provides that the district 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. Salazar is
correct that he may file a Rule 36 motion to correct a clerical error in the PSR,
even at this late date. See United States v. Mackay, 

(5th Cir.
2014). However, a clerical error occurs when the court intends to do one thing
but through clerical mistake or oversight does another.         United States v.
Buendia-Rangel, 

, 379 (5th Cir. 2008). Because the purported
errors identified by Salazar are not clerical errors, but involve legal and factual
challenges to his sentence, he has not shown that he was entitled to relief
under Rule 36. See 

does not present any nonfrivolous issue, and he has not
shown that it is taken in good faith. See Howard v. King, 

, 220
(5th Cir. 1983). Accordingly, his motion for leave to proceed IFP is DENIED,
and the appeal is DISMISSED as frivolous. See Baugh v. Taylor, 

,
202 (5th Cir. 1997); 5TH CIR. R. 42.2.
      Salazar is WARNED that filing repetitive or frivolous pleadings in this
court could result in the imposition of sanctions. These sanctions may include
dismissal, monetary sanctions, and restrictions on his ability to file pleadings
in this court and any court subject to this court’s jurisdiction.




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