Rule 36 a Limited Vehicle for Sentence Correction

US v. Vanderhorst: In 2007, Vanderhorst pleaded guilty to a drug conspiracy and was sentenced as a career offender, based partly on prior convictions from North Carolina. One of those prior convictions, years later, was corrected from a “conspiracy to sell and deliver cocaine” (as it was described in the PSR) to a “conspiracy to traffick cocaine by transportation.” In 2016, Vanderhorst filed a motion under Rule 36 of the Rules of Criminal Procedure to correct the “clerical error” in the PSR and that, without the error, he would not have been sentenced as a career offender. The district court denied the motion, “holding that defendants are categorically barred from relying on Rule 36 as a basis for obtaining resentencing.”

The Fourth Circuit affirmed, although on different grounds. The court held that a PSR is a “other part of the record” for Rule 36 purposes and the mislabeling of the prior offense was a “clerical” error. It then held that there is no categorical bar to a defendant seeking sentencing relief under Rule 36, but noted that the situations where that can happen will be relatively rare. The court cited approvingly a prior unpublished decision which allowed for resentencing where a career offender sentence had been based on an error as to which count of a prior indictment the defendant pleaded guilty to. With the error corrected it was clear the defendant no longer qualified as a career offender. By contrast, Vanderhorst was not entitled to relief because he still had the requisite number of career offender predicates. The court rejected his attempt to relitigate the status of two of them, noting that that was a substantive argument and “a defendant may obtain relief under Rule 36 based on clerical errors, not substantive errors.”