                                                                            FILED
                           NOT FOR PUBLICATION                               MAY 23 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50405

              Plaintiff - Appellee,              D.C. No. 2:98-cr-00749-CAS-1

  v.
                                                 MEMORANDUM *
RICHARD WAYNE PARKER, AKA
Rick,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                        Argued and Submitted May 7, 2012
                              Pasadena, California

Before: PREGERSON, GRABER, and BERZON, Circuit Judges.

       Richard Wayne Parker appeals the amended judgment against him, which

was corrected in 2010 after he moved under Fed. R. Crim. P. 36 to correct a

clerical error in the amount of the fine imposed. Although his Rule 36 motion was

granted, Parker now seeks to challenge the validity of his sentence of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
imprisonment under Apprendi v. New Jersey, 530 U.S. 466 (2000), which was

decided after he was sentenced but before the conclusion of his direct appeal.

      Regardless of whether the district court acted properly by amending, under

Rule 36, Parker’s judgment of conviction to reflect the reduction of his fine, it is

apparent that the ministerial amendment of the judgment—reflecting a decision

made years before—does not entitle Parker to file a new challenge to his sentence

of imprisonment. Parker has had two previous opportunities to raise an Apprendi

challenge to his sentence: on direct appeal, where he failed to make this argument,

and in a motion under 28 U.S.C. § 2255, where he argued that his original counsel

had been constitutionally defective for failing to raise Apprendi on appeal. On

appeal from the denial of § 2255 relief, this court rejected that argument, holding

that any Apprendi error was harmless, as the evidence against Parker was

“overwhelming and virtually uncontested.” United States v. Parker, 173 Fed.

App’x 582 (9th Cir. 2006) (unpublished decision). The district court’s grant of

Parker’s Rule 36 motion does not entitle him to raise this issue again.

      The cases Parker cites are not to the contrary. United States v. Colvin, 204

F.3d 1221 (9th Cir. 2000), and United States v. LaFromboise, 427 F.3d 680 (9th

Cir. 2005), held that the time for filing a collateral attack under § 2255 is measured

from the entry of an amended judgment when portions of the original judgment


                                           2
have been vacated on appeal. See Colvin, 204 F.3d at 1225. These cases do not

apply here. Parker’s fine was reduced as a result of the collateral attack under

§ 2255, not as a result of a direct appeal, and there has already been an appeal of

the § 2255 ruling. Parker’s Rule 36 motion sought only to conform his judgment

to the reduced fine. Accordingly, that motion could not have triggered a second

collateral proceeding and did not require—or allow—the district court to “reweigh

the sentencing factors and come to an independent sentencing decision.”

LaFromboise, 427 F.3d at 685 n.7.

      AFFIRMED.




                                          3
