United States v. Lyle Johns

MEMORANDUM ** Lyle Gerald Johns appeals pro se from the district court’s order denying his Federal Rule of Criminal Procedure 36 motion to correct the presentence report. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Johns contends that the presentence report erroneously states that he was “the leader of five persons or more” and therefore subject to an aggravating role enhancement under U.S.S.G. § 3Bl.l(a). We review for clear error the denial of a Rule 36 motion. See United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir.1985) (per curiam). Assuming without deciding that Rule 36 applies to presentence reports, the. district court properly denied Johns’s motion because the statement in the presen-tence report is not a clerical error. 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.”). Furthermore, Johns’s challenge to the presentence report was rejected by the court on the merits prior to sentencing. AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.