United States District Court, W.D. Pennsylvania
R. Hornak, Chief United States District Judge
Defendant, Devon Home, entered a guilty plea in this case on
September 27, 2018, and was subsequently sentenced to
forty-eight (48) months of imprisonment followed by six (6)
years of supervised release. (ECF Nos. 34, 51.) On September
18, 2019, the Court received a letter from Mr. Home, in which
he asks the Court to amend his Presentence Investigation
Report ("PSR"). (ECF No. 57.) Mr. Home alleges that
the PSR contains "false accusations" that he
"did in fact car jack Tracey S." (Id.) Mr.
Home states that he has spoken with Jessica DeLano, the U.S.
Probation Officer who prepared the PSR, who told him that she
cannot amend it "without the Court's
permission." (Id.) Mr. Home alleges that the
wording used in the PSR may prevent him from receiving
programming necessary to make a successful transition into
society, presumably referring to programs offered to inmates
by the Bureau of Prisons. (Id.) The Court ordered
counsel to file statements of position within fourteen (14)
days, but no such statements were filed. (ECF No. 58.) Still,
for the following reasons, the Court must deny Mr. Home's
Court, as is true of every federal court, is a court of
limited jurisdiction. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). It only has the powers
authorized by the Constitution and laws passed by Congress,
and it may not expand those powers otherwise. Id.
Consequently, when the Court receives a petition for judicial
relief, like Mr. Home's letter, it must have some source
of authority and jurisdiction to grant it. Mr. Home cites no
such sources in his letter and the Court is unable to
are five (5) potential sources of authority that
might permit the Court to grant a similar motion to
amend a PSR-Federal Rules of Criminal Procedure 32, 35, and
36, and 28 U.S.C. §§ 2241, 2255. The Court
concludes none of them apply to this case.
the Federal Rules of Criminal Procedure, a 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 oversight or omission. Fed. R. Crim. P. 36. The Court
may do so on its own upon giving "any notice it
considers appropriate." Id.; see United States v.
Sedlak, No. 09-cr-79-1, 2018 WL 3056188, at *3 (M.D. Pa.
June 20, 2019). A clerical error under Rule 36 "involves
a failure to accurately record a statement or action by the
court or one of the parties" and any error arising from
an oversight or omission is corrected "to conform to the
intention of the court or parties at the time the error was
made, which may not be reflected in their recorded
statements." United States v. Bennett, 423 F.3d
271, 277 n.4, 277-78 (3d Cir. 2005). The Third Circuit has
recognized that Rule 36 applies to PSRs. United States v.
Gjeli, 867 F.3d 418, 426 n.12 (3d Cir. 2017). However,
Rule 36 does not permit a court to substantively
modify a PSR. See United States v. Patton, 610
Fed.Appx. 102, 104 (3d Cir. 2015) (citing Bennett,
423 F.3d at 278).
district court in United States v. Sedlak corrected
a clerical error in a prior sentencing order under Rule 36,
because the order incorrectly stated that the defendant was
required to register as a sex offender. Sedlak, 2018
WL 3056188, at *3. In the same case, the defendant also asked
the court to order the U.S. Probation Office to amend his PSR
so that it would clearly reflect that his conviction did not
subject him to sex offender registration requirements.
Id. In concluding that it could not do so, the court
stated, "Defendant cites no authority which would permit
us to amend the PSR . . . and we have been unable to locate
any." Id. at *5. If the PSR contained a
clerical error, the court suggested it could have corrected
it under Rule 36, but instead held that the requested change
was "based on [the defendant's] current desire to
use the PSR to assist him in not registering as a sex
case, there does not appear to be any clerical error or error
arising from an oversight or omission, as defined in
Bennett. 423 F.3d at 277-78. Upon a review of the
PSR, it appears that Mr. Home is referencing the criminal
history section. (ECF No. 41, at 10.) More specifically, he
is referring to the first entry in the adult criminal
convictions section. (Id.) The relevant paragraph
states in part:
According to a criminal complaint that was prepared and filed
by the Pittsburgh Police Department, on or about February 18,
2005, local authorities observed the defendant operating a
vehicle that was reported as stolen. The defendant attempted
to avoid apprehension by leading local authorities on a
pursuit that ended with him being tased and taken into
custody. . . . The aforementioned vehicle belonged to
Tracy [S.] and was reportedly taken in a car-jacking in the
South Side of Pittsburgh, Pennsylvania.
(Id. (emphasis added).) The PSR also lists the
associated convictions as: (1) unauthorized use of a motor
vehicle; (2) fleeing or attempting to elude police officer;
(3) resisting arrest or other law enforcement; and (4)
driving while operating privilege is suspended or revoked.
(Id.) Therefore, the Court finds that the PSR does
not state that, as Mr. Home claims in his letter, he "in
fact car jack[ed] Tracey S." (ECF No. 57.) While the PSR
does state that Mr. Home was observed driving a vehicle
reported as stolen, and in the same paragraph mentions that
the car was stolen via car-jacking, it does not directly
accuse Mr. Home of the car-jacking. In these circumstances,
Rule 36 does not allow the Court to grant Mr. Home's
request, unless he is able to show that this ambiguous
statement regarding the car-jacking is a clerical error or
oversight. He has not yet done so.
permits a court and the parties to challenge and amend a PSR.
Rule 32(f) allows the parties to object to a PSR within
fourteen (14) days of receipt, and Rule 32(i)(3) requires the
court to rule on any such objection. Fed. R. Crim. P. 32(f),
(i)(3). The District Court in Sedlak held, however,
that those objections must be made before
sentencing, not after. Sedlak, 2018 WL 3056188, at
*5 (citing nonprecedential decisions from three courts of
appeal). Because the defendant there failed to raise his
objections prior to sentencing, the court held that Rule 32
would not permit it to amend his PSR. Id.
courts of appeal have held that, when an objection to a PSR
is raised post-sentencing, the district court lacks
jurisdiction to amend it under Rule 32. United States
v. Ballard, 512 Fed.Appx. 152, 153 (3d Cir. 2013)
(nonprecedential); United States v. Warner, 23 F.3d
287, 290-91 (10th Cir. 1994); United States v.
Giaimo, 880 F.2d 1561, 1563 (2d Cir. 1989) ("Rule
32, standing alone, does not give a district court
jurisdiction to correct inaccuracies in a PSI report after a
defendant has been sentenced."); United States v.
Sarduy, 838 F.2d 157, 158 (6th Cir. 1988) (citing
United States v. Fischer, 821 F.2d 557 (11th Cir.
1987)) (dismissing the district court's jurisdiction
under a previous version of Rule 32). Rather, a defendant may
raise an alleged Rule 32 violation on direct appeal,
not as a collateral attack after sentencing has taken place.
Sarduy, 838 F.2d at 158. Thus, Rule 32 is also
unavailable to Mr. Home.
28 U.S.C. ...