                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 02 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-10613

               Plaintiff - Appellee,              D.C. No. 5:01-cr-20050-EXE

  v.
                                                  MEMORANDUM *
VICTOR PACHECO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Victor Pacheco appeals pro se from the district court’s order denying his

motion to amend the judgment pursuant to Federal Rule of Criminal Procedure 36.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Pacheco contends that the judgment should be corrected to reflect the district

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s intent for his sentence to run concurrently with an undischarged state

sentence. Specifically, he argues that, under U.S.S.G. § 5G1.3(b)(1), he is entitled

to credit for time served in state custody before he was convicted and sentenced in

federal court.

      The district court properly denied Pacheco’s Rule 36 motion. See United

States v. Penna, 319 F.3d 509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for

correcting clerical mistakes but it may not be used to correct judicial errors in

sentencing.”) (emphasis in original); United States v. Kaye, 739 F.2d 488, 490 (9th

Cir. 1984) (“[T]he provisions of Rule 36 do not permit a substantive change in the

period of incarceration which the defendant must serve.”).

      Pacheco’s request for appointment of counsel is denied.

      AFFIRMED.




                                           2                                     11-10613
