United States of America v. Christopher Niu

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER NIU,
Defendant-Appellant.
No. 17-10379
D.C. No. 1:06-cr-00594-SOM-4
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
Christopher Niu appeals pro se from the district court’s order denying his
motion under Federal Rule of Criminal Procedure 36 to amend the presentence
investigation report (“PSR”). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-10379
Niu argues that the district court erred by declining to amend the PSR to
reflect the three-level aggravating role enhancement agreed to by the parties in the
plea agreement, rather than the four-level enhancement recommended by the
probation officer. We review for clear error the denial of a Rule 36 motion. See
United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985). Assuming without
deciding that Rule 36 applies to presentence reports, we conclude that the district
court did not clearly err because the change Niu sought was not a clerical change.
See United States v. Penna, 319 F.3d 509, 513 (9th Cir. 2003) (“Rule 36 is a
vehicle for correcting clerical mistakes but it may not be used to correct judicial
errors in sentencing.”). Furthermore, Niu did not show that the PSR was
erroneous. Niu’s contentions that the government breached the plea agreement and
that the district court erred by denying his motion for a sentence reduction also do
not provide a basis for relief under Rule 36. See Fed. R. Crim. P. 36; Penna, 319
F.3d at 513.
AFFIRMED.

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