                                                                                [DO NOT PUBLISH]

                     IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT
                                 ________________________            FILED
                                                            U.S. COURT OF APPEALS
                                         No. 11-11921         ELEVENTH CIRCUIT
                                     Non-Argument Calendar      OCTOBER 3, 2011
                                   ________________________        JOHN LEY
                                                                    CLERK
                        D.C. Docket No. 8:03-cr-00208-EAK-TGW-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

                                                  versus

MICHAEL JERMAINE COLSTON,

llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
                                      ________________________

                         Appeal from the United States District Court
                             for the Middle District of Florida
                               ________________________

                                           (October 3, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

        Michael Jermaine Colston appeals the district court’s denial of his pro se

post-conviction motion, made pursuant to Fed. R. Crim. P. 36, to correct a
purported error in the pre-sentence investigation report (PSI). Colston was

sentenced as a career offender, under U.S.S.G. § 4B1.1, in part because his PSI

reflected that one of his predicate offenses was for battery on a police officer.

After sentencing, Colston requested that the PSI be changed to reflect that he had

merely pushed a police officer backwards, and not that he pushed the officer

down. On appeal, Colston argues that the error in the PSI was an inadvertent

“clerical error” that can be corrected by Rule 36. The government responds that

Colston’s proposed change to the PSI “seeks to recharacterize the conduct

underlying his conviction for battery on a law enforcement officer.” Further, the

government notes that this sort of correction is beyond the purview of Rule 36

because the rule should be used to correct undisputed errors and not, as is the case

here, to substantively alter a sentence.

      We review de novo the application of Fed. R. Crim. P. 36 to correct a

district court’s sentencing judgment. United States v. Portillo, 363 F.3d 1161,

1164 (11th Cir. 2004). Rule 36 allows the court, after giving appropriate notice, to

“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.

But Rule 36 cannot be used to make a substantive alteration to a criminal sentence.

Portillo, 363 F.3d at 1164. Moreover, a defendant who alleges that his PSI

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contains incorrect information must usually raise that argument at sentencing and

on direct appeal, rather than for the first time in a post-conviction proceeding. See

United States v. Peloso, 824 F.2d 914, 915 (11th Cir. 1987).

      Here, Colston effectively seeks to modify the district court’s guideline

calculation, and the factual conclusions on which it relied, so that he will not be

characterized as a career offender under U.S.S.G. § 4B1.1. Although at sentencing

Colston objected to his base offense level, his career offender status, and the

calculation of his criminal history score, he did not object to the facts in the PSI.

Thus, he is not seeking to alter a “clerical error” in the facts of the PSI under Rule

36. The district court is

AFFIRMED.




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