                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-15257                ELEVENTH CIRCUIT
                                                              JUNE 2, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 97-00017-CR-4-RH




UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

ANTONIO L. SCOTT,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                               (June 2, 2009)

Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:
      Antonio L. Scott, proceeding pro se, appeals the district court’s denial of his

pro se motion to correct his presentence investigation report (PSI), brought

pursuant to Fed. R. Crim. P. 36. On appeal, Scott argues the court erred in denying

his motion because the court had the authority to correct the PSI as part of the

record. Scott contends his PSI incorrectly provided that his offense involved crack

cocaine and miscalculated his criminal history score, and he asserts he was

sentenced based on this incorrect information. He also argues the court had the

power to correct clerical errors nunc pro tunc, and, even though he did not move to

have the PSI corrected nunc pro tunc, the court could grant him such relief as a pro

se movant. Furthermore, Scott contends the court erred because it had a “duty to

correct an obviously injurious error adverse” to him. Finally, he submits that the

inaccurate information has caused prison administrators to “erroneously classify

[his] custody classification form,” in violation of the Fifth Amendment.

      Rule 36 of the Federal Rules of Criminal Procedure provides, “After giving

any notice it considers appropriate, 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. We have

recognized that Rule 36 only allows for the correction of “clerical mistakes” and

stated that “[i]t is clear in this Circuit that Rule 36 may not be used to make a



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substantive alteration to a criminal sentence.” United States v. Portillo, 363 F.3d

1161, 1164 (11th Cir. 2004) (internal quotations omitted). In Portillo, we held

Rule 36 was the proper vehicle for the district court to correct a judgment to

conform to the court’s oral pronouncement at sentencing regarding a restitution

order, noting that the mistake was clerical because it was “minor and mechanical”

and “did not fundamentally alter Portillo’s sentence.” Id. at 1165. In addition, we

concluded the district court’s deletion of a provision from the judgment that

Portillo pay restitution jointly and severally with his co-conspirator was proper

under Rule 36 because the court overlooked that the co-conspirator was not

ordered to pay restitution and the change did not make Portillo’s sentence more

onerous. Id.; cf. United States v. Whittington, 918 F.2d 149, 151 (11th Cir. 1990)

(holding Rule 36 was inapplicable when a court order “fundamentally changed the

sentence appellant had earlier received”).

      Scott did not seek to correct a clerical error of the type that Rule 36 can be

used to correct, so the district court correctly determined he was not entitled to

relief under that rule. Additionally, it appears no other statute or rule could

provide Scott with the relief he sought. For example, even if the district court had

construed Scott’s motion as a motion for a modification of his sentence under Rule

35 or 18 U.S.C. § 3582, the government never filed a motion to reduce Scott’s



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sentence and Scott filed his own motion more than seven days after sentencing and

did not identify a retroactively applicable amendment to the Sentencing Guidelines

that would have the effect of lowering his Guidelines range. See United States v.

Morrison, 204 F.3d 1091, 1093 (11th Cir. 2000) (finding, in the context of an

earlier version of Rule 35(a), the seven-day limitation is a “jurisdictional

restriction”); 18 U.S.C. § 3582(c)(2)). Further, the district court would not have

had jurisdiction to construe Scott’s motion as one filed pursuant to 28 U.S.C.

§ 2255 because he previously filed a § 2255 motion that was denied with prejudice

and had not obtained authorization from this Court to file a second or successive

§ 2255 motion. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).

Accordingly, we discern no reversible error and affirm.

      AFFIRMED.




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