CLD-263                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2337
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                        OMARI HOWARD PATTON, a/k/a “O”

                                   Omari Patton,
                                        Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                            (W.D. Pa. Crim. No. 02-cr-00093)
                     District Judge: Honorable Donetta W. Ambrose
                      ____________________________________

                      Submitted for Possible Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 9, 2015
       Before: FUENTES, GREENAWAY, JR. and VANASKIE, Circuit Judges

                              (Opinion filed: July 23, 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.
       Omari Howard Patton, a federal prisoner proceeding pro se, appeals from the

District Court’s order denying his motion pursuant to Rule 36 of the Federal Rules of

Criminal Procedure. The Government moves to summarily affirm the District Court’s

order. For the following reasons, we will grant the Government’s motion.

       Patton was a member of one of the largest heroin and cocaine trafficking

organizations in western Pennsylvania. In November 2004, a federal jury found him

guilty of more than twenty-five counts of drug-related felonies, including: one count each

of conspiring to distribute one kilogram or more of heroin, five kilograms or more of

cocaine, and fifty grams or more of cocaine base; and one count of possession with intent

to distribute 100 grams or more of heroin. At sentencing, the District Court found that

Patton was responsible for at least six hundred grams of cocaine base and ten kilograms

of heroin1 and, relying on the United States Sentencing Guidelines, sentenced him to an

aggregate term of 360 months’ imprisonment. We affirmed the convictions and

sentences on direct appeal. United States v. Patton, 292 F. App’x 159 (3d Cir. 2008) (not

precedential).

       Since then, Patton has unsuccessfully attempted to challenge the District Court’s

drug quantity findings on several occasions. First, when Patton filed a motion to vacate

his convictions and sentences under § 2255, he argued, inter alia, that his attorney


1
  The Probation Office prepared a Presentence Investigation Report (“PSR”) that deemed
Patton responsible for these quantities based on the evidence at trial, which included
testimony from Patton’s co-conspirators.

                                             2
rendered ineffective assistance at sentencing by failing to challenge the ten kilograms of

heroin attributed to him in the Presentence Investigation Report (“PSR”). The District

Court rejected this claim, finding that counsel had, in fact, made this argument at

sentencing. We affirmed the District Court’s judgment. United States v. Patton, 502 F.

App’x 139 (3d Cir. 2012) (not precedential). Patton subsequently filed two motions

pursuant to 18 U.S.C. § 3582(c)(2) based on changes in the Guidelines challenging both

the amount of cocaine base and heroin attributed to him. The District Court denied both

motions.2

       On March 25, 2015, Patton filed the motion at issue in this appeal, a motion

pursuant to Rule 36 of the Federal Rules of Criminal Procedure, to correct an alleged

“clerical error” in the record. In the motion, Patton contended that Paragraph 23 of his

PSR erroneously stated that he was responsible for ten kilograms of heroin. Patton

explained that the Bureau of Prisons (“BOP”) relies on the PSR to determine his custody

classification, and claimed that the error has precluded him from participating in certain

prison programs. The District Court denied the motion, and Patton timely appealed.3

       The District Court properly denied relief. Rule 36 provides that “[a]fter giving

any 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


2
 Patton’s appeal from the District Court’s order denying his second motion pursuant to
18 U.S.C. § 3582(c)(2) is currently pending in this Court. (C.A. No. 14-4157.) Patton
did not seek review of the District Court’s order denying his first § 3582(c)(2) motion.

                                              3
oversight or omission.” Fed. R. Crim. P. 36. “A clerical error involves a failure to

accurately record a statement or action by the court or one of the parties.” United States

v. Bennett, 423 F.3d 271, 277-78 (3d Cir. 2005) (quotation and citation omitted); see also

United States v. Smalley, 517 F.3d 208, 213 (3d Cir. 2008). In objecting to the heroin

quantity found in the PSR, Patton does not seek to correct an error of oversight or

omission; instead, he seeks a substantive change to the PSR and his sentence on the

ground that the heroin quantity finding was unsupported. Rule 36 does not, however,

authorize a sentencing court to substantively modify a sentence. Bennett, 423 F.3d at 278

(explaining that a sentencing court may not correct an illegal sentence or otherwise

substantively modify a sentence via Rule 36). Therefore, the District Court properly

denied relief.

         Given that this appeal presents no substantial question, we will grant the

Government’s motion and summarily affirm the District Court’s order. See 3d Cir. LAR

27.4 and I.O.P. 10.6. The motion for appointment of counsel is denied.




3
    We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
                                               4
