USA v. Brown et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Criminal Case No. 1:00-cr-00069-MR-5
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) O R D E R
)
AMOS JUNIOR SCOTT, )
)
Defendant. )
)
THIS MATTER comes before the Court on the Defendant’s Motion to
Correct Presentence Investigation Report. [Doc. 192].
On January 12, 2001, the Defendant was found guilty after a jury trial
of conspiracy to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(ii) and 851. [Doc. 80]. The Defendant
was sentenced to a term of life imprisonment. [Doc. 111]. The Fourth Circuit
Court of Appeals affirmed the Defendant’s conviction and sentence on July
15, 2002. [Doc. 124]. The Defendant filed a motion to vacate pursuant to
28 U.S.C. § 2255 [Doc. 135], which the Court denied on November 5, 2003
[Doc. 136]. The Fourth Circuit Court of Appeals dismissed his appeal and
denied a certificate of appealability on June 23, 2006. [Doc. 157]. The
Case 1:00-cr-00069-MR Document 193 Filed 06/09/16 Page 1 of 5

2
Defendant filed a second motion to vacate in July 2008. [Doc. 161]. The
Court denied this motion as an unauthorized § 2255 motion. [Doc. 164].
The Defendant now returns to this Court, requesting correction of
certain “factual inaccuracies” in his Presentence Report (PSR) pursuant to
Rule 36 of the Federal Rules of Criminal Procedure. Specifically, the
Defendant argues that the PSR erroneously states that (1) he was previously
convicted of assault with a deadly weapon and (2) he was once affiliated with
a gang. These errors, the Defendant contends, adversely affects his security
classification and eligibility for certain programs while incarcerated. [Doc.
192].
Rule 36 of the Federal Rules of Criminal Procedure provides that
“[a]fter giving any notice it considers appropriate, the 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. “Rule 36 motions apply only to clerical errors and are not the
proper vehicle for challenging the substance of the information in a
presentence report . . . .” United States v. Wilkes, 376 F. App’x 295, 296 (4th
Cir. 2010) (per curiam). Instead, such challenges must be made in the form
of objections to the presentence report, which objections must be filed within
fourteen days of receiving the document. See Fed. R. Crim. P. 32(f).
Case 1:00-cr-00069-MR Document 193 Filed 06/09/16 Page 2 of 5

3
Here, while the Defendant is asking the Court to correct certain “clerical
errors,” he is in fact asserting a substantive challenge to the information
presented in the PSR. Because the time for making such objections has
long since passed, the Court lacks jurisdiction to entertain the Defendant’s
motion. See United States v. Davis, No. PJM 00-0424, 2012 WL 8466126,
at *1 (D. Md. Nov. 2, 2012).
Further, although styled as a Rule 36 motion, the Defendant is
attacking the same criminal judgment that he challenged in his prior § 2255
motion. See United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)
(noting that “new legal arguments or proffers of additional evidence will
usually signify that the prisoner is . . . continuing his collateral attack on his
conviction or sentence”). The Antiterrorism and Effective Death Penalty Act
(AEDPA) provides, in relevant part, that “[a] second or successive motion
[under Section 2255] must be certified as provided in Section 2244 by a
panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
Case 1:00-cr-00069-MR Document 193 Filed 06/09/16 Page 3 of 5

4
28 U.S.C. § 2255(h). As noted, the Defendant previously filed a motion to
vacate pursuant to 28 U.S.C. § 2255, which was denied. The Defendant has
provided no evidence that he has secured the necessary authorization from
the Fourth Circuit to proceed with a successive § 2255 motion. This Court is
therefore without jurisdiction to consider a successive petition under § 2255.
See In re Vial, 115 F.3d 1192, 1194-95 (4th Cir. 1997) (en banc).
For the foregoing reasons, the Defendant’s Rule 36 motion is denied.
Further, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases,
the Court declines to issue a certificate of appealability as the Defendant has
not made a substantial showing of a denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when relief
is denied on procedural grounds, a petitioner must establish both that the
correctness of the dispositive procedural ruling is debatable, and that the
petition states a debatably valid claim of the denial of a constitutional right).
Case 1:00-cr-00069-MR Document 193 Filed 06/09/16 Page 4 of 5

5
O R D E R
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to
Correct Presentence Investigation Report [Doc. 192] is DENIED.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2255 Cases, the Court declines to issue a certificate of
appealability.
IT IS SO ORDERED. Signed: June 9, 2016
Case 1:00-cr-00069-MR Document 193 Filed 06/09/16 Page 5 of 5