                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 21, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 13-3131
          v.                                             (D. of Kan.)
 CURTIS ALLISON,                              (D.C. No. 2:05-CR-20112-JWL-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges. **


      Curtis Allison, a federal prisoner serving a ten-year sentence, appeals from

the district court’s denial of a Federal Rule of Criminal Procedure 36 motion to

correct a clerical error in his judgment and sentence. We have jurisdiction under

28 U.S.C. § 1291 and we construe Allison’s filings liberally because he is




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991). We affirm the district court’s decision.

      After Allison pleaded guilty to child pornography charges in January 2006,

a probation officer prepared a presentence report (PSR) in anticipation of

sentencing. The PSR recommended several special conditions of supervised

release, including that Allison participate in a substance abuse program. Such a

program, said the PSR, “may include drug/alcohol testing, counseling and

inpatient treatment.” R., Vol. 2 at 16 (emphasis added). 1

      Allison’s attorney received and reviewed the PSR and had no objections.

At Allison’s sentencing hearing in April 2006, the district court inquired, “Mr.

Allison, let me confirm with you that [your attorney] has reviewed [the PSR] with

you; is that correct?” Allison answered, “Yes.” Supp. R. at 2.

      After hearing arguments from counsel about the precise sentence Allison

should receive, the district judge announced a sentence of 121 months’

imprisonment and three years of supervised release. The district judge further

stated, “I intend to impose each of the mandatory and special conditions of

supervision which are set forth in Part D of the presentence report at Paragraph[s]

66 through 85.” Id. at 25. Those PSR paragraphs included the substance abuse

program with its potential for inpatient treatment. Neither Allison nor his counsel


      1
        Volume 2 of the record is sealed but this material ended up verbatim in
Allison’s judgment, which is a public document.

                                        -2-
made any objection. These conditions were then copied verbatim into the court’s

written judgment. See R., Vol. 1 at 55–56.

      In February 2013—almost seven years after sentencing—Allison filed a

“motion for correction of the record pursuant to Fed. R. Crim. P. 36 and

43(a)(3).” R., Vol. 1 at 85 (capitalization normalized). Those two criminal

procedure rules provide, respectively, that “the court may at any time correct a

clerical error in a judgment” and that “the defendant must be present at * * *

sentencing.” The interrelationship between these two rules and Allison’s case is

somewhat convoluted.

      According to Allison, the inpatient treatment condition is so onerous (as a

potential liberty deprivation) that Allison should have been warned about it

specifically at the sentencing hearing—and the lack of such a warning makes the

condition void. If the condition is void yet included in his sentence, then the

written sentence contradicts the orally pronounced sentence, making Allison

effectively not present at his own sentencing, in violation of his constitutional

rights. See United States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987) (en

banc) (noting that Criminal Rule 43(a)(3) “has its source in the confrontation

clause of the sixth amendment and the due process clause of the fifth and

fourteenth amendments” and that “a defendant is sentenced in absentia [and

therefore unconstitutionally] when the judgment and commitment order is allowed

to control when there is a conflict [with the sentence pronounced from the

                                         -3-
bench]”). Thus, says Allison, the inpatient treatment condition is a “clerical

error” needing correction under Criminal Rule 36.

      The district court concluded that Allison’s motion lacks merit because

Allison confirmed his opportunity to review the PSR before sentencing, the court

had orally announced its intent to include PSR paragraphs 66 through 85 into

Allison’s supervisory release conditions, those paragraphs included the inpatient

treatment provision, and those paragraphs were indeed reproduced verbatim in

Allison’s judgment and sentence. Therefore, the oral and written sentences did

not conflict.

      We agree with the district court, both with its explicit reasoning and the

implicit notion that the potential for inpatient treatment is not the sort of

condition that requires explanation from the bench in every instance. Nor do we

see any reason why the inpatient treatment possibility required explanation from

the bench under the circumstances of this case.

      But we also note that Allison’s motion appears to be an attempt to get

around normal appellate and post-conviction procedures. Allison alleges a

constitutional error, not a clerical error. Such errors must normally be raised on

direct appeal, and if that is not possible, then (for federal prisoners) through

28 U.S.C. § 2255. The 14-day window for a direct appeal has obviously long

since passed, see Fed. R. App. P. 4(b)(1)(A), as has the one-year limitations




                                          -4-
period for a § 2255 motion, see 28 U.S.C. § 2255(f). Allison cannot sidestep

these restrictions by reclassifying the problem as a “clerical error.”

      In any event, because no clerical error occurred here, Allison’s motion fails

on its own terms. 2 The district court’s decision is AFFIRMED.

                                        ENTERED FOR THE COURT

                                        Timothy M. Tymkovich
                                        Circuit Judge




      2
        Allison passingly mentions four other supervised release conditions that
he wishes to be stricken, referring to them only by paragraph number and
providing no explanation of what those conditions are or why they should not
have been imposed. Such inadequately developed arguments are forfeited. See
Fed. R. App. P. 28(a)(9)(A) (“[each] argument . . . must contain . . . appellant’s
contentions and the reasons for them”).

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