USA v. Craig Sizer

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12317
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG SIZER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cr-20715-BB-1
____________________
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2 Opinion of the Court 23-12317
Before J ORDAN, L AGOA, and B LACK , Circuit Judges.
PER CURIAM:
Craig Sizer, a federal prisoner proceeding pro se, appeals fol-
lowing the district court’s denial of his Federal Rule of Criminal
Procedure 36 motion to correct an alleged error in his Presentence
Investigation Report (PSI) and to be resentenced under the cor-
rected PSI. Sizer asserts the district court erred in denying his mo-
tion because he requested only the correction of clerical errors, as
permitted under Rule 36. Rather than responding, the Govern-
ment has filed a motion for summary affirmance, contending Sizer
failed to contest the district court’s reason for denying his order,
namely, its lack of jurisdiction in light of his pending appeal of the
denial of a prior compassionate release motion, and that, regard-
less, affirmance was proper, as Rule 36 does not permit the relief
that Sizer requested. After review,1 we affirm.
As an initial matter, it appears the district court initially dis-
missed Sizer’s Rule 36 motion for lack of jurisdiction, though it
later clarified, pursuant to a motion for clarification, that it was
denying his claims on the merits. Assuming, arguendo, that the dis-
trict court dismissed the Rule 36 motion for lack of jurisdiction
1 We review questions of the district court’s subject matter jurisdiction de novo,
even if raised for the first time on appeal. United States v. Gruezo, 66 F.4th 1284,
1290 (11th Cir.), cert. denied, 144 S. Ct. 178 (2023). We also review the district
court’s application of Fed. R. Crim. P. 36 to correct a clerical error de novo.
United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004).
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23-12317 Opinion of the Court 3
instead of on the merits, doing so was error because Sizer’s appeal
of the denial of his previous compassionate release motion did not
divest the district court of jurisdiction to adjudicate his Rule 36 mo-
tion because that portion of the case was not related to his compas-
sionate release case that was on appeal. See Johnson v. 3M Company,
55 F.4th 1304, 1309 (11th Cir. 2022) (holding “an interlocutory ap-
peal does not completely divest the district court of jurisdiction,”
and “[t]he district court has authority to proceed forward with por-
tions of the case not related to the claims on appeal” (quotation
marks omitted)).
However, as we may affirm on any ground supported by the
record, we turn to the merits of Sizer’s claim, and here, the Gov-
ernment’s position is clearly correct as a matter of law. United
States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (“[W]e may
affirm for any reason supported by the record, even if not relied
upon by the district court.” (quotation marks omitted)); Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)2 (explain-
ing summary disposition is appropriate where “the position of one
of the parties is clearly right as a matter of law so that there can be
no substantial question as to the outcome of the case, or where, as
is more frequently the case, the appeal is frivolous”). Rule 36 allows
a court “at any time [to] correct a clerical error in a judgment, or-
der, or other part of the record, or correct an error in the record
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 23-12317
arising from oversight or omission.” Fed. R. Crim. P. 36. “Rule 36
may not be used to make a substantive alteration to a criminal sen-
tence.” United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004)
(quotation marks omitted). Clerical errors are “minor and me-
chanical in nature.” Id. at 1165.
In his Rule 36 motion, Sizer asserted he was improperly sen-
tenced due to an error in the PSI’s loss amount calculation. He
sought to both correct the purported error and to be resentenced
based on the corrected PSI. Under our precedent, Rule 36 is not a
proper vessel for seeking substantive alterations to a criminal sen-
tence. Id. at 1164. Rather, attacks on the validity of a sentence
must generally be brought under § 2255. See Sawyer v. Holder, 326
F.3d 1363, 1365 (11th Cir. 2003) (stating collateral attacks on the
validity of a federal conviction or sentence are typically brought
under 28 U.S.C. § 2255). Accordingly, the relief sought by Sizer
was unavailable to him under Rule 36.
Consequently, the Government’s position is clearly correct
as a matter of law, no substantial question exists as to the outcome
of the case, and the Government is entitled to summary affir-
mance. See Groendyke Transp., Inc., 406 F.2d at 1162. Therefore,
we GRANT the Government’s motion for summary affirmance
and AFFIRM the district court’s denial of Sizer’s Rule 36 motion.
AFFIRMED.
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