                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 23 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10060

               Plaintiff - Appellee,             D.C. No. 4:91-cr-00392-CKJ

 v.
                                                 MEMORANDUM*
LYLE GERALD JOHNS,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                           Submitted November 18, 2015**

Before:        TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

      Lyle Gerald Johns appeals pro se from the district court’s order denying his

Federal Rule of Criminal Procedure 36 motion to correct the presentence report.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Johns contends that the presentence report erroneously states that he was

“the leader of five persons or more” and therefore subject to an aggravating role

enhancement under U.S.S.G. § 3B1.1(a). We review for clear error the denial of a

Rule 36 motion. See United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985)

(per curiam). Assuming without deciding that Rule 36 applies to presentence

reports, the district court properly denied Johns’s motion because the statement in

the presentence report is not a clerical error. See United States v. Penna, 319 F.3d

509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for correcting clerical mistakes but

it may not be used to correct judicial errors in sentencing.”). Furthermore, Johns’s

challenge to the presentence report was rejected by the court on the merits prior to

sentencing.

      AFFIRMED.




                                          2                                    15-10060
