United States v. Gomez-Olivas
672 F. App'x 887
| 10th Cir. | 2017Background
- Gomez-Olivas was convicted in 1997 of conspiracy to distribute and possess with intent to distribute cocaine and marijuana under 21 U.S.C. §§ 841(a)(1), 846.
- The PSR assigned a total offense level of 40 and criminal history category IV, yielding a Guidelines range of 360 months to life; the district court imposed a life sentence on September 11, 1997.
- Nearly 20 years later, Gomez-Olivas filed a Rule 36 motion asking the district court to correct the PSR to reflect offense level 38 and a Guidelines range of 324–405 months.
- He relied on Federal Rule of Criminal Procedure 36 (correction of clerical errors, oversight, or omission) as the basis for relief.
- The district court denied the motion in relevant part, concluding Rule 36 permits correction of clerical (non‑substantive) errors only and that the alleged PSR errors were substantive.
- Gomez-Olivas appealed pro se; the Tenth Circuit affirmed the district court’s denial of the Rule 36 relief and granted in forma pauperis status for the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 36 authorizes correction of the alleged PSR errors | Rule 36 permits correcting the PSR to reflect offense level 38 (clerical/oversight) | Rule 36 is limited to clerical/non‑substantive errors; PSR disputes are substantive | Rule 36 applies only to clerical/non‑substantive errors; alleged errors here are substantive, so relief denied |
| Whether the alleged PSR errors are clerical or substantive | Gomez‑Olivas characterizes the guideline computations/entries as clerical mistakes amenable to correction | The government/district court treats the guideline calculations and offense‑level determinations as substantive factual or legal matters | Court accepts precedent that Rule 36 motions are inappropriate to alter substantive presentence information; plaintiff failed to show clerical nature |
| Whether precedent allows Rule 36 use to challenge PSR substance | Argues Rule 36 can correct oversight in the record even if it affects sentencing range | Cites Tenth Circuit precedent restricting Rule 36 to clerical corrections only | Tenth Circuit precedent forecloses using Rule 36 to challenge PSR substance; plaintiff offered no controlling contrary authority |
| Whether appellant proceeding pro se affects review | Pro se filings should be liberally construed | Court is not required to act as advocate for pro se litigant | Court liberally construes filings but will not assume arguments or provide advocacy; outcome unaffected |
Key Cases Cited
- United States v. Lonjose, 663 F.3d 1292 (10th Cir. 2011) (Rule 36 permits correction of non‑substantive clerical errors only)
- Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009) (courts should liberally construe pro se filings but not act as advocate)
- United States v. Simon, [citation="36 F. App'x 415"] (10th Cir. 2002) (Rule 36 not proper vehicle to challenge presentence report substance)
- United States v. Long, [citation="419 F. App'x 845"] (10th Cir. 2011) (confirming Rule 36 limits to clerical errors)