                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             NOV 4 2003
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-4089
           v.                                                 (D. Utah)
 ABE LEHI,                                       (D.C. Nos. 2:02-CV-317-J and
                                                        2:92-CR-36-A)
                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Movant-Appellant Abe Lehi, proceeding        pro se , filed a motion pursuant to

Fed. R. Crim. P. 36 in federal district court. The district court concluded that

Lehi’s motion raised claims properly brought pursuant to Rule 36, as well as

claims that must be brought in a 28 U.S.C. § 2255 motion. Accordingly, the

district court treated Lehi’s motion as both a Rule 36 motion and § 2255 motion.

With regard to the correction of clerical errors in the judgment of conviction, the

district court granted Lehi relief in part and denied him relief in part, holding as

follows: (1) the judgment would be corrected to reflect that Lehi was sentenced

on count VI pursuant to 18 U.S.C. § 4205(a) instead of 18 U.S.C. § 4205(b)(1),

thereby shortening the amount of time Lehi had to serve on this count before

becoming eligible for parole from thirty years to ten years;   1
                                                                   and (2) the record

was clear that Lehi’s sentence on count VI was to run consecutively to the

sentences imposed on counts III, IV, XII, and XIII. With regard to Lehi’s claims

arising under 28 U.S.C. § 2255, the district court concluded as follows:

             Petitioner cites no authority for his constitutional claims, and
       the court finds nothing in his moving papers or the applicable body
       of law to support the conclusion that the sentence imposed upon Mr.
       Lehi for the offenses to which he entered a plea of guilty—crimes
       involving multiple acts of sexual abuse of minor children—is so
       oppressive and disproportionate in relation to his admitted criminal
       conduct as to constitute cruel and unusual punishment. Nor does he



       The United States has not appealed the district court’s decision to correct
       1

the judgment to indicate that Lehi’s sentence on count VI was pursuant to
18 U.S.C. § 4205(a).

                                            -2-
       make any colorable showing of a denial of due process or of equal
       protection, whether based upon his indigence, or otherwise.

       On appeal, Lehi does not reassert the arguments that his sentences violate

the Fifth and Eighth Amendments.       2
                                           Instead, he argues that the district court erred

in refusing to fully correct the judgment pursuant to Rule 36. This court exercises

jurisdiction over Lehi’s appeal of the district court’s partial denial of Rule 36

relief pursuant to 28 U.S.C. § 1291.       3
                                               As the transcript quoted by the district court

makes clear, the sentencing court clearly intended that the sentence imposed on

count VI was to run consecutively to the sentences imposed on all other counts.

       Lehi is simply incorrect in asserting that 18 U.S.C. § 4205 is in any way

relevant to his sentences on counts III, IV, XII, and XIII. Those convictions were

for conduct which occurred after the Sentencing Guidelines came into effect. The

Sentencing Reform Act of 1984 repealed § 4205, replacing the pre-Guidelines

parole-based system “in favor of more uniformly determined, definite release

dates combined with supervised release.”               Verner v. United States Parole

Comm’n , 150 F.3d 1172, 1175 n.5 (10th Cir. 1998). Accordingly, to the extent

Lehi is arguing that the district court should have corrected the judgment to

reflect that he is eligible for parole after having served some portion of his



      Accordingly, Lehi’s request for a certificate of appealability is hereby
       2

denied as moot.
       3
           This court grants Lehi’s motion to proceed on appeal in forma pauperis.

                                                 -3-
concurrent sentences on post-Guidelines counts III, IV, XII, and XIII, he is

incorrect as a matter of law.

       For those reasons set out above, this court   affirms the district court’s

partial denial of Lehi’s Rule 36 motion for substantially those reasons set forth by

the district court.

                                                  ENTERED FOR THE COURT


                                                  Michael R. Murphy
                                                  Circuit Judge




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