United States v. Mark Cubie, 699 F. App'x 567

Mark Cubie was convicted of conspiracy to distribute cocaine/crack (21 U.S.C. § 841, 846) and using a firearm in a drug offense (18 U.S.C. § 924(c)); total sentence 295 months affirmed on direct appeal.
The PSR described a codefendants’ murder (Earl Benion); Cubie objected but parties agreed it did not change his offense level.
At sentencing Judge Clevert ordered the PSR amended to state the murder “has not been used in calculating the guidelines,” denied redaction of the murder description, and—after dispute—announced he would not consider the murder as a § 3553(a) sentencing factor.
Judge Clevert said he would include that limitation in the Judgment, but the written judgment, minute entry, and Statement of Reasons only stated the murder was not used to calculate the guidelines offense level, omitting the § 3553(a) sentencing-factor language.
Over eight years later Cubie moved under Fed. R. Crim. P. 36 to correct this omission as a clerical error; the district court denied the motion as the record was accurate and complete.
The Seventh Circuit affirmed, holding Rule 36 did not require correction because the omission caused no material inconsistency or prejudice and the record as a whole made the judge’s intent clear.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 36 requires amendment to add that the court did not consider Benion murder as a § 3553(a) sentencing factor	Cubie: omission is a clerical error; § 3553(a) sentencing-factor differs from guidelines offense level and should be memorialized	Gov./district court: written record accurately reflects sentence and reasoning; no clerical gaffe requiring correction	Denied; no Rule 36 correction required because omission caused no material inconsistency or prejudice
Standard of review for Rule 36 denial	Cubie: seeks de novo review due to oral vs written inconsistency	District court/this court: denial of Rule 36 motion reviewed for abuse of discretion	Abuse-of-discretion review applies; no abuse found
Whether omission prejudiced defendant or affected substantial rights	Cubie: absence of § 3553(a) language could mislead future reviewers or BOP	District court: sentencing transcript and other documents make clear the judge did not consider the murder; no prejudice shown	No prejudice shown; omission is trivial and immaterial to sentence
Whether Rule 36 covers non-clerical substantive differences	Cubie: requests substantive modification of another judge’s Statement of Reasons	Court: Rule 36 limited to clerical errors, not substantive changes to another judge’s reasoning	Rule 36 not a vehicle for substantive amendments; court declines to rewrite another judge’s statement

United States v. Newman, 794 F.3d 784 (7th Cir.) (clarifies clerical-error scope under Rule 36)
United States v. Daddino, 5 F.3d 262 (7th Cir. 1993) (Rule 36 does not apply to errors made by the court itself)
United States v. Medina-Mora, 796 F.3d 698 (7th Cir.) (Rule 36 used to correct material inconsistency in written judgment)
United States v. Quintero, 572 F.3d 351 (7th Cir.) (affirming correction to include agreed-forfeiture in judgment)
United States v. Alburay, 415 F.3d 782 (7th Cir.) (correcting special condition via Rule 36)
United States v. Bonanno, 146 F.3d 502 (7th Cir.) (declining correction for trivial discrepancy)
United States v. McHugh, 528 F.3d 538 (7th Cir.) (amending another judge’s Statement of Reasons without changing sentence is improper/advisory)
United States v. Orozco-Sanchez, 814 F.3d 844 (7th Cir.) (discussing review of conflicts between oral and written judgments)
United States v. Nicksion, 628 F.3d 368 (7th Cir.) (prior appeal affirming Cubie’s convictions)