     Case: 18-50359      Document: 00514949275         Page: 1    Date Filed: 05/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                    No. 18-50359                                 FILED
                                  Summary Calendar
                                                                              May 8, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALAN WADE JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:16-CV-246


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Alan Wade Johnson, federal prisoner # 09514-079, was convicted of
firearms-related offenses in 1995. He now appeals the district court’s denial
in part of his Federal Rule of Criminal Procedure 36 motion and the denial of
his motion for the appointment of counsel. Johnson argues that the district
court erred in finding that the clerical error in the presentence report did not
affect his federal sentence. He contends that the sentencing court ordered his


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-50359     Document: 00514949275    Page: 2   Date Filed: 05/08/2019


                                 No. 18-50359

federal sentence to run consecutively to the state sentence due to this error and
that the court did not consider the factors of 18 U.S.C. § 3553(a).
      Rule 36 provides that “the court may at any time correct a clerical error
in a 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. The district
court granted the motion to the extent that Johnson sought correction of a
clerical error.   Johnson argues for a resentencing, seeking credit for time
served or an order to run the sentence concurrently to his state sentences.
These changes sought by Johnson do not involve the mechanical correction of
a clerical error or concern an error arising from an oversight or omission. As
Johnson was essentially requesting resentencing, he was not simply asking for
a correction of a clerical error. Thus, the changes that he demanded and sought
regarding his actual sentence are not the type of error that may be corrected
under Rule 36. See United States v. Mackay, 757 F.3d 195, 197 (5th Cir. 2014);
United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008). The
district court did not err in denying Johnson’s Rule 36 motion in this regard.
      Johnson contends that the district court erred in denying his motion for
appointment of counsel. We review de novo the legal question whether an
appointment for the purpose for which the movant seeks counsel complies with
the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. United States v. Garcia,
689 F.3d 362, 363 (5th Cir. 2012).         Under the plain language of the
CJA, appointment of counsel was not required. Accordingly, the district court
did not abuse its discretion by denying the motion for appointment of counsel.
      The judgment of the district court is AFFIRMED.




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