           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 28, 2009
                                     No. 09-20038
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHN PAUL ROTH,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:97-CR-96-1


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
       John Paul Roth, federal prisoner # 76094-079, appeals the district court’s
denial of his motion filed in December 2008 under Federal Rule of Criminal
Procedure 36 to correct an alleged clerical error in the district court’s 1999
judgment of conviction. In December 1996, Roth was arrested by state officials
on charges of drug possession. A Texas court sentenced him to a 20-year prison
term in August 1997. That same month in federal court, he pleaded guilty,
pursuant to a plea agreement, to participating in a drug conspiracy and a

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 09-20038

conspiracy to launder money. Though Roth’s prior convictions made him eligible
for a mandatory sentence of life imprisonment, the district court granted the
Government’s motion under U.S.S.G. § 5K1.1 (substantial cooperation) and
sentenced Roth to concurrent prison terms: 264 months on the drug count and
240 months on the money-laundering count. After the court entered judgment,
it granted the Government’s agreed motion to amend it, as relevant here, “to
reflect that the sentences imposed in the federal case (264 and 240 months) are
to run concurrent to the defendant’s sentence imposed” in state court. The court
then entered the amended judgment, recommending that Roth’s sentence “run
concurrent to the term imposed” in the Texas court.
       The Board of Prisons determined that Roth was entitled to credit on his
federal sentence for the approximately nine months that he spent in state
custody after his arrest but before he was sentenced in Texas. According to
Roth, he is also eligible to receive credit for the some 17 months served in state
custody after he received his state sentence in August 1997 but before he was
sentenced in federal court in January 1999 (this time apparently was credited
against his state sentence).1 Roth argues that the 1999 federal judgment does
not clearly reflect the sentencing court’s intent that the state and federal
sentences run “fully concurrently.”
       Roth has not established that the district court erred in denying his
instant Rule 36 motion to correct the judgment. A district court “may at any
time correct a clerical error in a judgment” that arises from an “oversight or
omission.” F ED. R. C RIM. P. 36. A clerical error occurs when “the court intended
one thing but by merely clerical mistake or oversight did another.” United



       1
        In late August 1997, Roth was brought into federal custody from state custody, where
he was serving his state sentence, by the federal court’s writ of habeas corpus ad
prosequendum; he also asserts that two days after his January 1999 federal sentence he was
transferred back to state custody to serve his state sentence, that in May 2001 he was paroled
from his state sentence and was to taken into federal custody to serve the remainder of his
federal sentence.

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                                     No. 09-20038

States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008) (quoting United
States v. Steen, 55 F.3d 1022, 1026 n.3 (5th Cir. 1995)). Nothing in the record
establishes that the district court’s judgment did not accurately reflect its intent.
The judgment does not contradict anything that the judge said at the sentencing
hearing. See United States v. Slanina, 359 F.3d 356, 357-58 (5th Cir. 2004) (per
curiam). Indeed, the record shows that the court crafted the relevant portion of
the judgment expressly as the parties requested in the agreed motion to amend
the judgment. Roth’s argument that the judgment does not reflect the court’s
intent to apply U.S.S.G § 5G1.3(b) is misplaced because no mention of this
guideline was made at sentencing, so there is no evidence that the court
intended for it to have any effect on the sentence. Moreover, Roth is not entitled,
as he insists, to a more detailed explanation in the judgment regarding how the
sentence should be executed. The judgment is consistent with the court’s verbal
explanation of the sentence and its grant of the motion to amend the judgment;
thus Rule 36 cannot be used to clarify the sentence. See United States v. Patrick
Petroleum Corp., 703 F.2d 94, 98 (5th Cir. 1982).
      To the extent that Roth argues that the Bureau of Prisons has incorrectly
calculated his sentence, this claim is not cognizable in a motion under Rule 36.
See United States v. Mares, 868 F.2d 151, 151 (5th Cir. 1989). Rather, Roth
must raise it in a motion under 28 U.S.C. § 2241 filed in the district where he is
incarcerated. Id. at 151-52.2
      The decision of the district court is AFFIRMED.




      2
         Relief under 28 U.S.C. § 2255 has not been sought and is in any event plainly and
facially barred by limitations under 28 U.S.C. § 2255(f).

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