                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-3398
                                      ____________


                            UNITED STATES OF AMERICA

                                             v.

                                    COREY PASLEY,
                                              Appellant

                                     ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-11-cr-00076-002)
                     District Judge: Honorable Lawrence F. Stengel
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 13, 2020


            BEFORE: HARDIMAN, PORTER, and PHIPPS, Circuit Judges

                                 (Filed: January 17, 2020)

                                     ______________

                                        OPINION*
                                     ______________



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Corey Pasley appeals an order of the District Court denying his motion to alter or

amend his sentence under 28 U.S.C. § 2255(h). According to Pasley, the District Court

committed a clerical error at sentencing that this Court must remedy. Because we

perceive no error, we will affirm.

                                             I

       Pasley participated in a violent armed robbery of an apartment complex where he

worked as a security guard. He was tried by a jury, convicted on three federal counts, and

sentenced to 204 months’ imprisonment. This Court affirmed Pasley’s judgment of

conviction and sentence on direct appeal. United States v. Pasley, 629 F. App’x 378 (3d

Cir. 2015).

       After his direct appeal was rejected, Pasley moved to vacate, set aside, or correct

his sentence under 28 U.S.C. § 2255. A year later, the District Court denied Pasley’s

motion without a hearing and denied a certificate of appealability. Pasley appealed, and

while his application for a certificate of appealability was pending before this Court, he

moved for the first time “to alter o[r] amend the judgment due to mathematical

sentencing error and conflict with both the sentencing transcript and judgment of this

court.” App. 11–12.

       The District Court denied Pasley’s motion without prejudice, concluding it lacked

jurisdiction over what was “in essence” a second or successive motion under 28 U.S.C.

§ 2255. Pasley timely appealed the District Court’s order.



                                             2
                                             II

       Both parties agree the District Court sentenced Pasley to 121 months’

imprisonment on Counts One and Two, running consecutively with the sentence on

Count Three. The controversy involves Count Three, on which Pasley insists the District

Court “pronounced one, and only one, term of imprisonment. . . : 80 months.” Pasley Br.

16. The Government contends the 204-month total sentence twice announced by the

Court and stated in the written judgment is correct. And because the parties agree that

Counts One and Two carried a 121-month sentence, it follows that Pasley received 83

months for Count Three. According to Pasley, the District Court made a mathematical

error when announcing his total sentence and Federal Rule of Criminal Procedure 36

allows him to correct the accompanying clerical mistake on Count Three.

       After reading the transcript and carefully listening to an audio recording of the

sentencing proceedings, we cannot agree with Pasley that he ever received a sentence of

80 months’ imprisonment for Count Three. The District Court sentenced Pasley to the

“the top of the Guidelines in Counts I and II, to run concurrently, and to exceed the

mandatory minimum on Count III, to run consecutively as the law requires.”1 App. 42.

The sentencing transcript reads:

       Therefore, pursuant to the Sentencing Reform Act of 1984, it’s the
       judgment of the Court that the defendant, Corey Pasley, is committed to the
       custody of the Bureau of Prisons to be imprisoned for a term of 121 months
       on Counts I and II, to run together, that is concurrently, and for 80 -- an
       additional mandatory minimum, in addition to the 60 months, for a total of

       1
       The Guidelines range for Counts One and Two was 97–121 months. The
mandatory minimum consecutive sentence for Count Three is 60 months.

                                             3
       204 months, with supervised release on Counts I and II for three years and
       on Count III for five years, also to run concurrently.

App. 42–43. The “--” following “80” represents a long pause, during which the District

Court murmured, “let me see . . .” before continuing, never finishing its thought. Right

after the District Court pronounced the sentence, the Government clarified: “Your Honor,

it is my understanding that the total sentence is, in fact, 204 months, is that correct?”

App. 45. The Court responded, “That is correct.” Id. A 204-month sentence, with 121

months for Counts One and Two, requires an 83-month sentence for Count Three.

       This Court follows the “firmly established and settled principle of federal criminal

law that an orally pronounced sentence controls over a judgment and commitment order

when the two conflict.” United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991)

(quoting United States v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987)). Relying on this

rule, Pasley urges us to “correct” his sentence from the 83 months on the written

judgment to the 80 months in the sentencing transcript. But “[i]n interpreting the oral

statement, we have recognized that the context in which th[e] statement is made is

essential.” Ruggiano v. Reish, 307 F.3d 121, 134 (3d Cir. 2002) superseded on other

grounds by U.S.S.G. § 5G1.3 cmt. n.3(E) (2003). As the Tenth Circuit noted in Villano,

resorting to the judgment and commitment order for evidence of the District Court’s

intent is appropriate when the orally pronounced sentence is, as here, ambiguous. Villano,

816 F.2d at 1450, 1451.

       The ambiguity just referenced precludes Pasley from obtaining relief under Rule

36 of the Federal Rules of Criminal Procedure. That rule provides: “[a]fter giving any


                                              4
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.” Borrowing from the Fifth Circuit’s standard for Federal Rule of

Civil Procedure 60(a), this Court has held that a clerical error “must not be one of

judgment or even of misidentification, but merely of recitation, of the sort that a clerk or

amanuensis might commit, mechanical in nature.” United States v. Guevremont, 829 F.2d

423, 426 (3d Cir. 1987) (quoting Dura-Wood Treating Co. v. Century Forest Indus., 694

F.2d 112, 114 (5th Cir. 1982)).

       The record here shows that the District Court sentenced Pasley to 204 months’

imprisonment. At worst, Pasley’s sentence is ambiguous, and the statement of “80” is an

unfinished thought or a mathematical error. Unfinished thoughts and oral mathematical

errors are not the kind of clerical mistakes that can be corrected under Rule 36, especially

when the sentencing court corrects the putative error in the same sentence.2

       On Pasley’s view, we should give no weight to: the District Court’s statement that

his cumulative sentence was 204 months’ imprisonment; or the Court’s verification that

the sentence was for 204 months; or the written judgment stating that Pasley’s sentence

was for 121 months on Counts One and Two and for 83 months on Count Three, for a

total of 204 months’ imprisonment. We decline Pasley’s invitation because the District




       2
         Associated docket entries likewise contain a mathematical error, showing Pasley’s
sentence as 84 months’ imprisonment for Count Three. Those entries record Pasley’s total
sentence as 204 months, the only consistent number reflected in the oral sentencing, the
written judgment, and the docket entries.

                                              5
Court imposed a sentence of 204 months’ imprisonment, 121 months for Counts One and

Two and 83 months for Count Three.

       Because Rule 36 does not apply here, Pasley’s motion is, as the District Court

found, barred as a second or successive motion under 28 U.S.C. §§ 2244 and 2255(h). A

second or successive motion must be certified by a court of appeals before proceeding

and must present either “newly discovered evidence” or a “new rule of constitutional

law.” 28 U.S.C. § 2255(h). Pasley’s appeal was still pending in this Court when he filed

the motion at issue, so it was not second or successive at the time of filing. See United

States v. Santarelli, 929 F.3d 95, 104–05 (3d Cir. 2019). But it became so when this

Court denied a certificate of appealability for Pasley’s initial habeas petition. Id. at 104

n.5. Once Pasley’s appeal was denied, he “expended the ‘one full opportunity to seek

collateral review’ that AEDPA ensures.” Santarelli, 929 F.3d at 104 (quoting Blystone v.

Horn, 664 F.3d 397, 413 (3d Cir. 2011)). His motion to amend became second or

successive at that point—barring Pasley from relief absent newly discovered evidence or

a new rule of constitutional law, neither of which he alleges.

                                              III

       We will affirm the District Court’s order denying relief for the reasons stated.




                                              6
