*AMENDED
ALD-065                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-4079
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                           ANDRE LAMAR HENDERSON,
                                             Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (M.D. Pa. Crim. No. 1-11-cr-00122-001)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

              Submitted for Possible Dismissal as Untimely or Summary
              Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 18, 2014
            Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges

                             (Opinion filed: February 5, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Andre Lamar Henderson, a federal prisoner proceeding pro se, appeals an order of

the United States District Court for the Middle District of Pennsylvania denying his

motion pursuant to Federal Rule of Criminal Procedure 36. For the reasons that follow,

we will affirm the judgment of the District Court.

       In 2011, Henderson pleaded guilty to conspiracy to submit false tax returns in

violation of 18 U.S.C. § 286, and filing false tax returns in violation of 18 U.S.C.

§ 287. The District Court sentenced Henderson to 57 months in prison. Henderson

challenged his sentence on direct appeal and we affirmed. United States v. Henderson,

502 F. App’x 194 (3d Cir. 2012) (non-precedential).

       On September 2, 2014, Henderson filed a motion pursuant to Rule 36 to correct a

clerical error in his Presentence Investigation Report (“PSR”). Henderson asserted that

the Probation Officer had failed to include his mental health history in his PSR, that the

Bureau of Prisons relies on the PSR for programming purposes, and that as a result of this

omission he has been unable to participate in mental health programs.

       The District Court denied the motion. The District Court stated that it had also

received letters from Henderson regarding his access to mental health programming, and

that in response it had contacted the United States Probation Office. The District Court

was advised that Henderson’s former counsel had forwarded copies of his mental health

records to his Unit Manager. The District Court noted that it had no power to order the

Bureau of Prisons to provide treatment, and that Rule 36 does not provide an avenue to

alter Henderson’s PSR. This appeal followed.
                                              2
       We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We have not decided the

standard of review applicable to the denial of a Rule 36 motion. Other courts of appeals

have applied different standards. See, e.g., United States v. Dickie, 752 F.2d 1398, 1400

(9th Cir. 1985) (per curiam) (applying a clear error standard); United States v. Niemiec,

689 F.2d 688, 692 (7th Cir. 1982) (applying an abuse of discretion standard). We will

not resolve this question here because we would affirm under either standard.

       Under Rule 36, a court may “at any time correct a clerical error in the judgment,

order, or other part of the record, or correct an error in the record arising from oversight

or omission.” Fed. R. Crim. P. 36. “Errors arising from oversight or omission are

generally corrected to conform to the intention of the court or parties at the time the error

was made, which may not be reflected in their recorded statements.” United States v.

Bennett, 423 F.3d 271, 277 n.4 (3d Cir. 2005) (citation omitted) (emphasis in original).

       Henderson has not shown that the parties intended to include his mental health

history in the PSR. While Henderson sought a downward variance at sentencing based

on his history of mental illness, the sentencing transcript reflects that Henderson’s

counsel did not make any objections to the PSR at sentencing. In short, Henderson has

not established that there is an error in the record arising from oversight or omission.


1
 The parties were initially notified that this appeal was subject to possible dismissal
because the notice of appeal appeared to be untimely filed. We decline to dismiss this
appeal because the time requirements of Federal Rule of Appellate Procedure 4(b) are not
jurisdictional and the Government did not respond to our notice, thereby waiving any
contention that the appeal is untimely. Virgin Islands v. Martinez, 620 F.3d 321, 327-29
(3d Cir. 2010).
                                              3
      Accordingly, because this appeal does not present a substantial question, we will

summarily affirm the judgment of the District Court.2




2
 Henderson’s motions asserting that the Probation Office committed substantial error by
not including his mental health history in his PSR are denied.
                                           4
