DLD-021                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-1981
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                              LOUIS MARTIN AGNES,
                                        Appellant
                       ____________________________________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                            (E.D. Pa. Crim. No. 93-cr-00314)
                    District Judge: Honorable Ronald L. Buckwalter
                     ____________________________________

                   Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 30, 2014

             Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges

                           (Opinion filed: November 5, 2014)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Louis Martin Agnes, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the Eastern District of Pennsylvania denying his motion

pursuant to Federal Rule of Criminal Procedure 36. For the reasons that follow, we will

affirm the judgment of the District Court.

       On July 25, 1995, Agnes was sentenced on convictions for numerous counts of

drug trafficking. When his sentence was imposed, Agnes was serving a sentence for

violating parole related to an earlier conviction. The District Court stated at sentencing

that the 292-month sentence for each count was to be served concurrently with each other

and concurrently with the parole violation sentence. The judgment, however, provided

that the sentence on each count was to run concurrently with each other, but did not

reference the parole violation sentence. On May 6, 1996, the District Court amended the

judgment to provide that the sentence “is to run concurrently to the violation of parole

[s]entence the defendant is currently serving.” 5/6/96 Order.

       On October 16, 2009, Agnes filed a motion pursuant to Federal Rule of Criminal

Procedure 36 asserting that he should receive credit towards his 292-month sentence for

time served on his parole violation sentence from January 29, 1993 through July 24,

1995. The District Court denied the motion on the merits. We affirmed the District

Court’s judgment on the ground that Agnes’ challenge was not properly brought under

Rule 36. We explained that Rule 36 allows the court to correct clerical errors in a

judgment, and that the error alleged by Agnes – that the District Court intended his

sentence to run retroactively concurrent with his parole violation sentence – was not such
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an error. United States v. Agnes, 490 F. App’x 426, 428 (3d Cir. 2012) (non-

precedential).

       On December 16, 2013, Agnes filed another motion pursuant to Rule 36 again

arguing that his drug trafficking sentence should run concurrently with his parole

violation sentence so that he would get credit for the 29 months served before his

sentencing on July 25, 1995. Agnes asserted that the District Court made a clerical error

when it amended its judgment by providing that his sentence would run “concurrent to”

instead of “concurrent with” his parole revocation sentence. In response, the United

States argued that Agnes’ motion was barred by the doctrine of res judicata. Noting its

previous decision and this Court’s decision on appeal, the District Court denied the

motion. This appeal followed.

        We have jurisdiction pursuant to 28 U.S.C. § 1291. We have not decided the

 standard of review applicable to the denial of a Rule 36 motion and other courts of

 appeals have applied different standards. See, e.g., United States v. Dickie, 752 F.2d

 1398, 1400 (9th Cir. 1985) (per curiam) (applying a clear error standard); United

 States v. Niemiec, 689 F.2d 688, 692 (7th Cir. 1982) (applying an abuse of discretion

 standard). We will not resolve this question here because Agnes is not entitled to

 relief under either standard.

       The District Court and this Court have previously addressed Agnes’ claim. Agnes

reframes his claim in an effort to bring it within the purview of Rule 36, but he is

attempting to relitigate the claim raised in his prior motion. Agnes argued below that he
                                              3
did not have a full opportunity to litigate his first motion in District Court, but he

appealed and the matter was fully briefed in this Court.

       Accordingly, because this appeal does not raise a substantial question, we will

summarily affirm the judgment of the District Court.




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