     Case: 15-10084      Document: 00514027357         Page: 1    Date Filed: 06/09/2017




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

                                      No. 15-10084
                                                                               Fifth Circuit

                                                                             FILED
                                                                          June 9, 2017

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellee

v.

EDDIE FRANKLIN DOUGLAS,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:92-CR-141-2


Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
       Federal prisoner #23800–077 Eddie Franklin Douglas appeals the
district court’s denial of his motion pursuant to Federal Rule of Criminal
Procedure Rule 36. For the following reasons, we affirm.
                          I. Facts & Procedural History
       In 1993, Douglas was convicted by a jury of a drug-related conspiracy,
using and carrying a firearm during a drug-trafficking crime, and being a felon
in possession of a firearm. See United States v. Fike, 82 F.3d 1315, 1319, 1330


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-10084
(5th Cir. 1996). He was sentenced to a mandatory term of life imprisonment
without release on the conspiracy count, a concurrent life sentence on the
using-and-carrying count, and a consecutive five-year term on the felon-in-
possession count.    Id. at 1330.    On appeal, Douglas’s using-and-carrying
conviction was vacated on grounds of insufficiency of the evidence. Id. at 1328
(addressing Count 17). After vacating the using-and-carrying conviction, this
court specified that “[i]n view of Douglas’[s] sentence of life imprisonment
without parole [on the conspiracy count], there is no need to remand his case
for resentencing.” Id. Douglas subsequently filed a 28 U.S.C. § 2255 motion,
which the district court denied.
      In August 2014, Douglas filed a motion pursuant to Federal Rule of
Criminal Procedure 36 requesting that the district court correct the judgment
to reflect that his using-and-carrying conviction had been vacated. He also
sought resentencing on the basis that this court’s vacator of his conviction on
one count of a multi-count conviction “unbundle[d]” the original sentencing
package. He argued that he was entitled to be resentenced in accordance with
subsequent changes in the law.
      In October 2014, Douglas filed a petition for a writ of mandamus with
this court complaining that the district court ignored our mandate in his
criminal appeal by failing to issue a new judgment showing that his using-and-
carrying conviction had been vacated.       He requested that we correct the
“clerical error” in the original judgment and order resentencing based upon
subsequent changes in the law.
      On November 13, 2014, the district court construed Douglas’s Rule 36
motion as a successive 28 U.S.C. § 2255 motion and denied it because Douglas
had not received this court’s permission to file a successive Section 2255
motion. The district court also denied Douglas a certificate of appealability.
The next day, the district court issued a separate order denying the Rule 36
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                                       No. 15-10084
motion explaining that the alleged error was not a clerical error within the
meaning of the rule. The court further based its denial of the motion on this
court’s statement in the 1996 appellate opinion that a remand for resentencing
was unnecessary in light of Douglas’s life sentence on the conspiracy
conviction. See Fike, 82 F.3d at 1328.
      On November 24, 2014, Douglas filed a “Motion to Reconsider Rule 36”
seeking reconsideration of the district court’s “denial of his motion to correct
clerical error entered on November 14, 2014.” He argued that the alleged error
was in fact a “clerical error” correctable under Rule 36 and that this court’s
statement on appeal that resentencing was not necessary did not mean that
the district court or its clerk did not have the duty to amend the judgment to
reflect that the conviction was vacated. Douglas further averred that the
district court was obligated to correct the judgment for the purpose of removing
the special assessment fee. Douglas complained that he could be denied a
pardon because the judgment continued to incorrectly reflect that he had a
using-and-carrying conviction.
      In     December      2014,    we    denied     Douglas’s    mandamus        petition,
determining that, because the district court had denied his Rule 36 motion,
which sought the same relief as his mandamus petition, he had an available
appellate remedy. We explained that the denial of Douglas’s Rule 36 motion
was a criminal matter, that the denial of his Section 2255 motion was a civil
matter, and that he could timely appeal the denial of either motion.
Accordingly, we concluded that mandamus relief was not appropriate because
Douglas had an appellate remedy.
      In January 2015, the district court denied Douglas’s “Motion to
Reconsider Rule 36.” Douglas filed this appeal. 1


      1   This court granted Douglas’s motion to proceed in forma pauperis on appeal.
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                                     No. 15-10084
                              II. Standard of Review
      We conduct a de novo review of the district court’s order denying
Douglas’s Rule 36 motion. United States v. Ramirez-Gonzalez, 840 F.3d 240,
246 (5th Cir. 2016).
                                   III. Discussion
      Douglas argues on appeal that this court’s 1996 opinion vacating his
using-and-carrying conviction was a mandate to the district court to amend the
original judgment to reflect that the conviction was vacated and to remove the
special assessment for that conviction. 2 We disagree.
      In United States v. Clark, we explained that “[t]he law of the case
doctrine prohibits a district court from reviewing or deciding issues that have
been decided on appeal, whether expressly or by implication.” 816 F.3d 350,
361 (5th Cir. 2016). When a case is remanded, a district court may only “review
those discrete, particular issues identified by the appeals court for remand.”
Id. (citations omitted) (internal quotation marks omitted). Likewise, the
district court is required to “implement both the letter and the spirit of the
appellate court’s mandate and may not disregard the explicit directives of that
court.” Id. (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002)). In certain circumstances, however, the appellate court may determine
that remand of a particular case is unnecessary and instead, simply reverse
and render. See Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014)
(“[W]hen the record permits only one resolution of the factual issue after the
correct law is applied, remand is unnecessary.”); United States v. Oliphant, 456
F. App’x 456, 458 (5th Cir. 2012) (per curiam) (“[T]he discrepancy between the
oral and written judgments is an ambiguity that can be resolved by reviewing


      2 Douglas claims that he was not aware that the judgment was unchanged until May
2014, when the Bureau of Prisons purportedly denied his petition for compassionate release
and the denial referenced the using-and-carrying conviction.
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                                  No. 15-10084
the record as a whole; therefore, remand is unnecessary.”); Matthews, 312 F.3d
at 660 (“[I]f we had intended only a ministerial resentencing, we could have
reversed and rendered the . . . sentence to save everyone involved time,
expense, and effort.”); United States v. Hernandez-Guevara, 162 F.3d 863, 878
(5th Cir. 1998) (noting that the appellate court “need not waste judicial
resources by remanding for what undoubtedly would be a rote resentencing”).
      This court expressly declined to remand Douglas’s case after vacating his
using-and-carrying conviction—which carried a life sentence—because he was
already serving a life sentence without parole for the conspiracy conviction.
Fike, 82 F.3d at 1328, 1330.      Consequently, the district court was never
afforded an opportunity to revisit Douglas’s sentence or amend its original
judgment because doing so was deemed to be unnecessary by this court on
appeal. Id. at 1328; see also United States v. Marmolejo, 139 F.3d 528, 531 (5th
Cir. 1998) (“The only issues on remand properly before the district court are
those issues arising out of the correction of the sentence ordered by this
court.”); Clark, 816 F.3d at 361 (providing that under the law of the case
doctrine, when a case is remanded, the district court may only “review those
discrete, particular issues identified by the appeals court for remand”)
(internal quotation marks omitted). Consequently, we disagree with Douglas
that this court’s 1996 opinion vacating his using-and-carrying conviction was
a mandate to the district court to amend its original judgment.
      Douglas further argues on appeal that the district court’s failure to
amend the original judgment is a clerical error that is correctable under Rule
36 and that he is entitled to resentencing. This argument is also without merit.
      Rule 36 provides that the district 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. Rule 36 is a
limited tool that does not permit new factual or legal analyses. United States
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                                       No. 15-10084
v. Mackay, 757 F.3d 195, 200 (5th Cir. 2014). Rather, the rule is meant only to
correct “mindless and mechanistic mistakes.” Id. (quoting In re W. Tex. Mktg.
Corp., 12 F.3d 497, 505 (5th Cir. 1994). “Where the record makes it clear that
an issue was actually litigated and decided but was incorrectly recorded in or
inadvertently omitted from the judgment, the district court can correct the
judgment under Rule [36].” Ramirez-Gonzalez, 840 F.3d at 247 (quoting Rivera
v. PNS Stores, Inc., 647 F.3d 188, 199 (5th Cir. 2011) (indicating that Federal
Rule of Criminal Procedure 36 and Federal Rule of Civil Procedure 60(a) are
similar in that both are limited tools meant to correct “mindless and
mechanistic mistakes” (quoting Mackay, 757 F.3d at 200)).
       The relief Douglas seeks under Rule 36 is not just correction of a
judgment but resentencing “to comply with existing law.” 3 As this court has
acknowledged, “[t]his is not the type of error that is correctable under Rule 36.”
United States v. Valdez, 631 F. App’x 239, 240 (5th Cir. 2016) (per curiam)
(citing United States v. Steen, 55 F.3d 1022, 1025–26 n.3 (5th Cir. 1995) (noting
that although the statute does not define “clerical error,” “the Federal Rules of
Civil Procedure, the Federal Rules of Criminal Procedure, and caselaw
applying those rules provide guidance on what constitutes clerical error”)). 4
       Finally, to the extent that Douglas takes issue with the special
assessment fee that he paid in connection with the using-and-carrying


       3  In his reply brief, Douglas states that he “abandon[s] the sentencing package
argument” but nevertheless continues to submit that he is entitled to resentencing.
        4 We acknowledge that in United States v. Saikaly, the Sixth Circuit dealt with a case

involving strikingly similar facts to the one herein. 207 F.3d 363 (6th Cir. 2000). There, the
district court granted relief pursuant to 28 U.S.C. § 2255 and vacated the defendant’s 18
U.S.C. § 924(c) conviction, but its second judgment and commitment order continued to state
that the defendant was found guilty of the offense. Id. at 372. The Sixth Circuit ordered the
district court to correct the “clerical error” in the second judgment on remand pursuant to
Rule 36. Id. However, because this court did not remand Douglas’s case after vacating his
using-and-carrying conviction on appeal, Saikaly is distinguishable and, in any event, only
persuasive authority. See Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 533 (5th Cir.
2015) (providing that out-of-circuit cases can constitute persuasive authority).
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                                       No. 15-10084
conviction prior to reversal on appeal, a prisoner’s erroneous payment of a
special assessment is not considered a clerical error that is correctable under
Rule 36. Valdez, 631 F. App’x at 240 (citing Steen, 55 F.3d at 1025 n.3). 5
       Accordingly, we hold that the district court did not err in denying
Douglas’s Rule 36 motion. Ramirez-Gonzales, 840 F.3d at 246. 6
                                     IV. Conclusion
       For the aforementioned reasons, we affirm the order of the district court
denying Douglas’s Rule 36 motion. 7




       5  To the extent that Douglas challenges the Bureau of Prison’s alleged improper denial
of his petition for compassionate release on grounds that the denial referenced his using-and-
carrying conviction, again, “[t]his is not the type of error that is correctable under Rule 36.”
United States v. Valdez, 631 F. App’x 239, 240 (5th Cir. 2016) (citing United States v. Steen,
55 F.3d 1022, 1025 n.3 (5th Cir. 1995)). Douglas has administrative remedies available to
address such complaints. See 28 C.F.R. § 542.10. Once those administrative remedies are
exhausted, Douglas may petition for habeas relief pursuant to 28 U.S.C. § 2241. See Gallegos-
Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (noting that absent exceptional
circumstances, “a federal prisoner filing a § 2241 petition must first pursue all available
administrative remedies”).
        6 Douglas alternatively requests that we recall the part of our 1996 opinion stating

that a remand for resentencing was not necessary and that we “issue instructions to the
[district] court on how the judgment should be effectuated” once the district court removes
the vacated conviction from the judgment. We decline to do so. Although the Supreme Court
has recognized that appellate courts have the inherent authority to recall their mandates,
that power should be exercised only upon a showing of “extraordinary circumstances.” United
States v. Emeary, 794 F.3d 526, 527–28 (5th Cir. 2015). Douglas has failed to make such a
showing.
        7 To be clear, we affirm both the district court’s denial of Douglas’s reconsideration

motion and the underlying order denying the original Rule 36 motion.
                                               7
