                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                           JAN 19, 2010
                             No. 09-12699                   JOHN LEY
                         Non-Argument Calendar            ACTING CLERK
                       ________________________

                   D. C. Docket No. 01-06149-CR-KAM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ERNESTO POUX,

                                                         Defendant-Appellant.


                       ________________________

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

                            (January 19, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.


PER CURIAM:
       Ernesto Poux, a federal prisoner proceeding pro se, appeals the district

court’s denial of his pro se motion to correct his presentence investigation report

(PSI), purportedly brought pursuant to Fed. R. Crim. P. 36. On appeal, Poux

argues the district court erred by denying his motion because a 1997 state court

drug conviction reflected in the PSI violated the Excessive Fines Clause of the

Fifth Amendment and the Eighth Amendment’s Double Jeopardy Clause, and

absent this conviction, his sentence would not have been enhanced under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). After review, we

affirm.1

       Rule 36 provides that “[a]fter 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 Rule 36 only allows for the correction of

clerical mistakes that are “minor and mechanical,” and “[i]t is clear in this Circuit

that Rule 36 may not be used to make a substantive alteration to a criminal




       1
         “We review de novo legal questions concerning the Federal Rules of Criminal
Procedure.” United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006). This includes
whether to grant relief under Rule 36. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir.
2004).


                                                2
sentence.” United States v. Portillo, 363 F.3d 1161, 1164-65 (11th Cir. 2004)

(quotation omitted).

       Rule 36 is inapplicable. Poux did not identify a clerical error; rather, Poux

sought to have the PSI amended with a notation his 1997 state court conviction

violated the Eighth Amendment and the Fifth Amendment. By challenging the

validity of that underlying conviction and, accordingly, the validity of the ACCA

sentencing enhancement, Poux essentially raised a substantive challenge to the PSI.

The district court did not err in concluding Rule 36 did not provide a basis for

relief because Poux raised a substantive challenge to the PSI as opposed to a

“clerical” mistake.2

       AFFIRMED.




       2
          Although Poux styled the instant pleading as a motion to correct his sentence under
Fed. R. Crim. P. 36, we have held “[f]ederal courts are obligated to look beyond the label of a
pro se inmate’s motion to determine if it is cognizable under a different statutory framework,”
United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003). However, no other statute or
rule can provide Poux with the relief he seeks.

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