                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             May 8, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff – Appellee,

v.                                                          No. 14-5023
                                                 (D.C. No. 4:12-CR-00063-CVE-1)
BRIAN EDWARD RUHL,                                          (N.D. Okla.)

      Defendant – Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, McKAY, and MORITZ, Circuit Judges.
                 _________________________________

      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

      Appellant Bryan Edward Ruhl pled guilty to child pornography charges

pursuant to a written plea agreement with prosecutors in July 2012. In February

2014, while serving his sentence, Mr. Ruhl filed a motion for correction of clerical

mistakes under Fed. R. Crim. P. 36 to strike three of the “Special Sex Offender



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Conditions” contained in his plea agreement. The district court denied the motion

and Mr. Ruhl brought this appeal.

       Fed. R. Crim. P. 36 provides an avenue for courts to correct clerical mistakes

in judgments. However, Mr. Ruhl does not specify any clerical error in his judgment.

Mr. Ruhl takes issue with the three contested conditions and how they were presented

to him, but he does not tie his opposition to these conditions to a specific clerical

error or omission which a Rule 36 motion would allow a court to correct.

       Instead, Mr. Ruhl contests whether he was adequately informed of the terms of

his sentence prior to it being imposed and whether he had the mental capacity to

comprehend and accept the sentence without objection. These challenges raise

constitutional concerns, not concerns about clerical errors, and should have been

brought either through a direct appeal within fourteen days of the district court’s

entry of judgment, see Fed. R. App. P. 4(b)(1)(A), or through a 28 U.S.C. § 2255

motion, which allows collateral attacks upon the legality of a prisoner’s sentence by a

prisoner currently in custody within one year of the entry of a final judgment. The

time limit for these challenges has now passed, and Mr. Ruhl cannot circumvent

established channels simply by recharacterizing a substantive challenge to the

legality of his sentence as a motion to correct a clerical error.

       We hold each of Mr. Ruhl’s reasons for objecting to the “Special Sex Offender

Conditions” to be challenges to the legality of his sentence, not attempts to correct a

clerical omission or oversight contained within it, making his Rule 36 motion an

improper vehicle for raising these challenges. We therefore AFFIRM the district

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court’s decision to deny the motion. We also DENY Mr. Ruhl’s motion for

appointment of counsel to represent him on appeal.


                                         Entered for the Court


                                         Monroe G. McKay
                                         Circuit Judge




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