                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 12, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 09-4030
 BRIAN B. TUCKER,                              (D.C. No. 2:04-CR-00170-DB)
                                                      (Dist. of Utah)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BALDOCK, Circuit Judges. **


      Defendant Brian B. Tucker appeals, alleging that an amended judgment order

contained clerical errors requiring correction under Federal Rule of Criminal

Procedure 36. The amended judgment order was itself an attempt to correct minor

deficiencies in the first judgment order. Exercising jurisdiction under 28 U.S.C.

§ 1291, we remand for the limited purpose of correcting clerical errors in the

amended judgment to conform with the district court’s first correction order.


      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
                                         I.

      Defendant pled guilty, pursuant to a plea agreement, to aiding and abetting

armed bank robbery; in violation of 18 U.S.C. §§ 2113(a), (d) and 2; aiding and

abetting the using and carrying of a firearm in relation to a crime of violence, in

violation of 18 U.S.C. §§ 924(c) and 2; using an explosive to commit a felony, in

violation of 18 U.S.C. §§ 844(h)(1) and 2; and aiding and abetting bank robbery, in

violation of 18 U.S.C. §§ 2113(a) and 2. The district court sentenced Defendant to

twelve years’ imprisonment, followed by four years of supervised release.

      Defendant appealed his conviction, alleging the Government breached the plea

agreement. We disagreed, and affirmed. See United States v. Tucker, No. 07-4002,

253 Fed. App’x 718 (10th Cir. 2007). Next, Defendant moved the district court to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district court

denied the motion. See Tucker v. United States, No. 2:07-cv-999, 2008 WL 732724

(D. Utah, March 17, 2008). Defendant appealed.

      While the first § 2255 appeal was pending, Defendant filed several other

motions with the district court.      First, Defendant requested a certificate of

appealability (COA). Second, Defendant moved the district court to reconsider its

denial of his first § 2255 motion. Third, Defendant moved to amend the district

court’s sentence of restitution. The district court denied the first two motions and

transferred the third motion to this Court—construing it as a successive application

for relief under 28 U.S.C. § 2255.

                                         2
      We dismissed Defendant’s appeal seeking reconsideration of his initial § 2255

motion, noting that Defendant’s appeal of the § 2255 motion was still pending.

Addressing the underlying § 2255 appeal, we denied Defendant’s request for a COA

and, therefore, dismissed that appeal as well. See United States v. Tucker, No. 08-

4066, 298 Fed. App’x 794 (10th Cir. 2008).

      Subsequently, Defendant filed a motion for the district court to correct two

clerical errors under Federal Rule of Criminal Procedure 36. First, Defendant

contended that the “title and section” numbers of the statutes to which he pleaded

guilty were incorrectly denoted in the judgment order. Second, Defendant argued

that the “restitution section[]” of the judgment order did not accurately reflect the

adjusted calculation of restitution as reflected in a letter from the Government.

      On February 12, 2009, the district court granted Defendant’s Rule 36 motion

(the correction order). The district court ruled that the judgment order should be

amended to reflect that Defendant “was adjudicated guilty of violating the following

statutory provisions: 18 U.S.C. §§ 2113(a), (d) and 2, 18 U.S.C. §§ 924(c), 2, 18

U.S.C. § 844(h)(1) and 2, and 18 U.S.C. §§ 2113(a), and 2.” Although the district

court found no evidence supporting a reduction in the total amount of restitution, it

noted the Government conceded that credits “in the amount of $42,861” should be

applied, reducing the “total amount that remains owing . . . [to] $22,574.87.”

      Unfortunately, the amended judgment order incorrectly reflected the statutory

provisions. Specifically, the amended judgment contained at least three errors.

                                          3
First, the amended judgment referenced 18 U.S.C. § 2113(a)(d)(2) for the armed

bank robbery citation, but no such statute exists. Second, the amended judgment

referenced 18 U.S.C. § 924(c)(2), for the crime of using a firearm in relation to a

crime of violence, but the citation is to a definition in the statute;1 the district court’s

correction order, however, referenced both 18 U.S.C. § 924(c) and 18 U.S.C. § 2,

making the substantive crime aiding and abetting the using and carrying of a firearm

in relation to a crime of violence. See 18 U.S.C. §§ 924(c) & 2. Finally, the

amended judgment referenced 18 U.S.C. §844(h)(1) & (2) for the crime of using an

explosive to commit a felony, but the district court’s correction order directed

citation to 18 U.S.C. § 2 here as well. The amended judgment did, however, note

that Defendant only owed a remainder of $22,574.87 out of a total $64,435.87 in

restitution.

                                            II.

       Defendant advances two arguments on appeal. First, he argues that the total

amount of restitution reflected in the amended judgment exceeds the actual loss.

Second, he contends that the amended judgment does not accurately reflect the

statutes to which he pleaded guilty.

       Concerning restitution, Defendant has not presented any evidence that the total


       1
           Section § 924(c)(2) reads: “For purposes of this subsection, the term ‘drug
trafficking crime’ means any felony punishable under the Controlled Substances
Act . . ., the Controlled Substances Import and Export Act . . ., or chapter 705 of title
46.”

                                             4
amount of restitution, before offsets, is not $65,435.87.      The district court’s

correction order resulted in application of a $42,861 credit to reduce the amount

owed by Defendant to $22,574.87. Defendant’s appeal raises no meritorious basis

to change this amount, which is correctly reflected in the amended judgment order.

      To the extent that Defendant challenges the amount of restitution imposed at

sentence, we note that Federal Rule of Criminal Procedure 36 “does not give the

court authority to substantively modify a Defendant’s sentence.” United States v.

Blackwell, 81 F.3d 945, 949 (10th Cir. 1996). Although we could recharacterize

Defendant’s appeal as a second or successive petition under 28 U.S.C. § 2255, we

decline to do so. See Castro v. United States, 540 U.S. 375, 386-87 (2003) (Scalia,

J., concurring) (cautioning against recharacterization because of the potential for

“producing prejudice through the court’s intervention”) (emphasis omitted).

      Concerning the clerical errors in citations to the statutes, the Government

concedes a limited remand is necessary to remedy these deficiencies. Because the

amended judgment order fails to accurately reflect the district court’s corrections,

we REMAND for the district court to correct the errors.

                                      Entered for the Court,



                                      Bobby R. Baldock
                                      United States Circuit Judge




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