                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6943


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DONALD LAMONT POSTELL,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:88-cr-00136-FDW-1)


Submitted:   February 3, 2011            Decided:   February 22, 2011


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Donald Lamont Postell, Appellant Pro Se.    Anne Magee Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Donald      Lamont     Postell        appeals    the    district   court’s

text order denying his motion to correct his misspelled name on

the criminal judgment pursuant to Fed. R. Crim. P. 36 (“Rule

36”).     The district court construed Postell’s motion as a 28

U.S.C.A. § 2255 (2006) motion and denied it as successive in

light of Postell’s two previously filed § 2255 motions.                            In the

alternative, it denied Postell’s motion on the ground that he

failed to show prejudice resulting from the typographical error.

For the reasons that follow, we reverse the district court’s

order and remand for further proceedings.

               Rule 36 provides that a court may “correct a clerical

error    in    judgment,       order,       or    other   part    of    the    record,   or

correct       an    error     in    the     record     arising    from     oversight     or

omission” at any time after giving notice.                            Courts employ Rule

36 to correct errors that are clerical, rather than legal, in

nature.       See United States v. Johnson, 571 F.3d 716, 718 (7th

Cir. 2009); see also United States v. Buendia-Rangel, 553 F.3d

378,    379    (5th     Cir.       2008)   (per      curiam)    (“Rule    36   authorizes

[courts] to correct only clerical errors, which exist when the

court    intended       one    thing       but   by    merely    clerical      mistake   or

oversight did another.”) (internal quotation marks omitted).

               In    his    motion,        Postell     sought    to     correct   a   mere

clerical error of the type that courts may address pursuant to

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Rule   36.      Although    his      name        was    spelled     correctly    on    the

indictment and other court documents, it was misspelled on the

judgment,      indicating   that      the    court        likely    intended    to    type

“Postell” but made a mere typographical error.                            See Buendia-

Rangel, 553 F.3d at 379.           Because Postell sought to correct that

error and did not directly attack his conviction or sentence,

the district court erred when it construed Postell’s motion as a

successive § 2255 motion.             See United States v. Winestock, 340

F.3d 200, 207 (4th Cir. 2003).

             Furthermore,       we     hold            that   the    district        court

incorrectly denied Postell’s motion on the alternative ground

that he had not shown prejudice resulting from the typographical

error.   We have not held that prejudice is required to warrant a

correction pursuant to Rule 36.                   Indeed, Rule 36 provides that

such a correction may be made at any time.                       See Fed. R. Crim. P.

36.

             Accordingly, we reverse the district court’s order and

remand   for    the   district       court       to     properly    address    Postell’s

motion   under     Rule   36.        Postell’s          motion     for   transcript    at

government expense is denied.                    We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                              REVERSED AND REMANDED

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