USA v. Hector L. Roman Baez, Jr., No. 16-11926 (11th Cir. 2016)
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Case: 16-11926 Date Filed: 11/30/2016 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-11926 Non-Argument Calendar ________________________ D.C. Docket No. 2:10-cr-00025-JES-SPC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HECTOR L. ROMAN BAEZ, JR., a.k.a. Tito, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (November 30, 2016) Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges. PER CURIAM: Case: 16-11926 Date Filed: 11/30/2016 Page: 2 of 2 Hector Baez Jr. appeals pro se the denial of his motion to correct errors in his presentence investigation report. See Fed. R. Crim. P. 36. The district court ruled that the elimination of criminal history points from a presentence report is “not a ‘clerical error’ within the meaning of Rule 36.” We affirm. The district court did not err by denying Baez’s motion. A district court may use Rule 36 to correct a clerical error in a judgment, Fed. R. Crim. P. 36, but the correction “may not be used to make a substantive alteration to a criminal sentence,” United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). Baez moved to deduct points that had been assessed for four prior convictions on the grounds they “did not qualify under U.S.S.G. § 4B1.2(e)(1)” and “cause[d] [him] to have an upgrade security classification within the Federal Bureau of Prisons.” Because a reduction in criminal history points would alter Baez’s sentencing range, his motion does not request the type of “minor and mechanical” change allowed under Rule 36. See id. at 1165. Baez cannot raise a substantive challenge to the calculation of his sentence in a motion to correct a clerical error. We AFFIRM the denial of Baez’s motion to correct a clerical error. 2
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