             Case: 13-14767    Date Filed: 05/29/2014   Page: 1 of 3


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-14767
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:06-cr-60248-FAM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

STANLEY MCCRAY,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                 (May 29, 2014)

Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:

      Stanley McCray appeals pro se the denial of his post-judgment motion to

amend and correct his presentence investigation report. McCray argues that the
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presentencing investigation report erroneously stated that he had been convicted of

aggravated assault when he instead had pleaded guilty to a lesser-included charge

and that his sentence should not have been enhanced under the Armed Career

Criminal Act. McCray filed his motion nearly seven years after his criminal

conviction became final. We vacate and remand with instructions to dismiss for

lack of jurisdiction.

      We review de novo jurisdictional issues. United States v. Lopez, 562 F.3d

1309, 1311 (11th Cir. 2009).

      The district court lacked jurisdiction to entertain McCray’s motion several

years after his sentence was imposed. Federal Rule of Criminal Procedure 32

governs the preparation of presentencing reports, but it provides no jurisdiction for

correcting a report after a judgment of conviction and sentence has been entered.

Fed. R. Crim. P. 32; United States v. Fischer, 821 F.2d 557, 558 (11th Cir. 1987).

An error in the report may instead be challenged on direct appeal. United States v.

Peloso, 824 F.2d 914, 915 (11th Cir. 1987). Federal Rule of Criminal Procedure

35 permits a district court to correct a sentence for an arithmetical, technical, or

other clear error, but only within 14 days of sentencing. Fed. R. Crim. P. 35(a).

And Federal Rule of Criminal Procedure 36 permits a district court, at any time, to

correct a clerical error or an error in the record arising from oversight or omission.

Fed. R. Crim. P. 36. But a motion under Rule 36 may not be used to make


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substantive alterations to a sentence. United States v. Portillo, 363 F.3d 1161,

1164 (11th Cir. 2004). And a defendant cannot challenge the accuracy of his

presentencing investigation report for the first time in a collateral attack. Simmons

v. United States, 777 F.2d 660, 661–62 (11th Cir. 1985). Moreover, a collateral

attack by McCray would be barred as successive unless he first obtained

permission from this Court to file his motion. 28 U.S.C. § 2255(h). Because the

district court lacked jurisdiction to entertain McCray’s motion, we vacate and

remand with instructions to dismiss for lack of jurisdiction.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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