USA v. Andre Dupree Cogdell, No. 12-12515 (11th Cir. 2012)
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Case: 12-12515 Date Filed: 11/14/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-12515 Non-Argument Calendar ________________________ D.C. Docket No. 1:99-cr-00208-PAS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANDRE DUPREE COGDELL, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (November 14, 2012) Before BARKETT, MARCUS and MARTIN, Circuit Judges. PER CURIAM: Andre Cogdell, pro se, appeals the district court s denial of his Case: 12-12515 Date Filed: 11/14/2012 Page: 2 of 3 post-conviction motion to correct a purported error in the presentence investigation report ( PSI ), pursuant to Fed.R.Crim.P. 36, and his motion for reconsideration. On appeal, Cogdell makes the following arguments: (1) the district court erred by denying his Rule 26 motion; (2) the court at his original sentencing failed to make requisite factual findings with regard to his objection to paragraph 43 of the PSI and failed to append its written determinations to a copy of the PSI, pursuant to Fed.R.Crim.P. 32; (3) the court erred in determining that the crime in paragraph 43 was a crime of violence under U.S.S.G. ยง 4B1.2. and (4) he did not plead guilty to aggravated assault. We review de novo legal questions concerning the Federal Rules of Criminal Procedure. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006). We also review de novo the district court s application of Rule 36. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). In this case, the district court did not err in denying Cogdell s Rule 36 motion or motion for reconsideration because there was no clerical error. Further, there were no controverted facts, and, therefore, the district court was not required to make findings or append a copy of such findings to the PSI, pursuant to Fed.R.Crim.P. 32. Moreover, any challenge to Cogdell s career-offender classification is an attempt to challenge the validity of the district court s 2 Case: 12-12515 Date Filed: 11/14/2012 Page: 3 of 3 sentencing guidelines calculation, and, thus, is an inappropriate use of Rule 36. See Portillo, 363 F.3d at 1164-65. Furthermore, any potential error in paragraph 43 of the PSI with regard to Cogdell pleading nolo contendere to aggravated assault was invited because, in his objection to paragraph 43, he clearly asserted that he pled guilty to aggravated assault. Silvestri, 409 F.3d at 1327. Upon review of the record and consideration of the parties briefs, we affirm. AFFIRMED. 3
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