USA V. VICTOR PACHECO, No. 11-10613 (9th Cir. 2012)
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FILED JUL 02 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-10613 D.C. No. 5:01-cr-20050-EXE v. MEMORANDUM * VICTOR PACHECO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding Submitted June 26, 2012 ** Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges. Victor Pacheco appeals pro se from the district court s order denying his motion to amend the judgment pursuant to Federal Rule of Criminal Procedure 36. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Pacheco contends that the judgment should be corrected to reflect the district * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court s intent for his sentence to run concurrently with an undischarged state sentence. Specifically, he argues that, under U.S.S.G. § 5G1.3(b)(1), he is entitled to credit for time served in state custody before he was convicted and sentenced in federal court. The district court properly denied Pacheco s Rule 36 motion. 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. ) (emphasis in original); United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984) ( [T]he provisions of Rule 36 do not permit a substantive change in the period of incarceration which the defendant must serve. ). Pacheco s request for appointment of counsel is denied. AFFIRMED. 2 11-10613
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