DLD-104                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2688
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                 DUMONT BUSH,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 2-95-cr-00407-006)
                     District Judge: Honorable James Knoll Gardner
                      ____________________________________

                 Submitted for Possible Dismissal due to Untimeliness
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 5, 2015
             Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges

                            (Opinion filed: February 13, 2015)
                                        _________

                                        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.
       Dumont Bush appeals the District Court’s order denying his motion filed pursuant

to Fed. R. Crim. P. 36. For the reasons below, we will summarily affirm the District

Court’s order.

       In 1996, Bush was convicted of bank robbery and conspiracy. He was sentenced

to 210 months in prison. We affirmed his conviction and sentence on appeal. See United

States v. Bush, 151 F.3d 1027 (3d Cir. 1998) (table). In December 2012, Bush filed a

motion to correct a clerical error pursuant to Fed. R. Crim. R. 36. By order entered

December 12, 2013, the District Court denied the Rule 36 motion as moot. On January

31, 2014, Bush filed a “Motion to Reinstate Deadline to File Notice of Appeal,” and on

March 5th, he filed a “Motion to File Notice of Appeal.” Citing Fed. R. App. P.

4(a)(5)(a), the District Court granted the “Motion to Reinstate” and gave Bush until May

14th to file his notice of appeal. Bush filed a notice of appeal dated May 5th. The parties

were notified that the appeal might be dismissed because the notice of appeal was

untimely filed.

       Bush’s motion was filed pursuant to Fed. R. Crim. P. 36. Thus, the time to appeal

is governed by Fed. R. App. P. 4(b) which provides that an appeal must be filed with the

district court within fourteen days of the entry of the judgment or order being appealed.

See Fed. R. App. P. 4(b)(1)(A)(i). Bush’s notice of appeal was dated May 5, 2014, more

than fourteen days after entry of the District Court’s December 12, 2013 order denying

his Rule 36 motion. However, the deadline is not jurisdictional and may be waived if the

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Government does not invoke it. United States v. Muhammad, 701 F.3d 109, 111 (3d Cir.

2012). Here, the Government has failed to raise the issue. Thus, we will not dismiss the

appeal as untimely.

       Under Rule 36, a District Court may correct a clerical error in a judgment at any

time. Bush argued that the District Court “erred in failing to adhere to it’s [sic] oral

pronouncement which contradicts the time and placement of defendant in federal

custody.” He contended that “[t]he absence of a reference in Mr. Bush’s judgment

concerning whether Mr. Bush was to receive credit for being in federal custody

constitutes a clerical error pursuant to Rule 36.” He requested that the District Court

amend its judgment to recommend that he receive credit for being in custody since 1996.

       Bush submitted a copy of his criminal judgment in which the District Court noted

that “[Bush] is to receive credit for all federal time served in custody pending disposition

of this case.” Thus, the criminal judgment does include a statement on Bush’s credit for

time served in federal custody. Bush does not point to any oral announcement at

sentencing which conflicts with the written judgment. Rather, he appears to believe that

a discussion at a pre-trial hearing in 1996 about his transfer to federal custody after

serving a state sentence conflicts with his criminal judgment. The alleged error here does

not involve a failure to accurately record an action or statement by the District Court.

See United States v. Bennett, 423 F.3d 271, 277-78 (3d Cir. 2005). Because there was no

clerical error to be corrected, the District Court did not err in denying Bush’s Rule 36

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motion. Moreover, as noted by the District Court, it is the Bureau of Prisons which has

the authority to calculate the credit that defendants receive for detention before

sentencing, not the District Court. See United States v. Wilson, 503 U.S. 329, 333

(1992).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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