United States v. Robert Mackay
757 F.3d 195
| 5th Cir. | 2014Background
- Defendant Robert A. Mackay pled guilty to conspiracy to distribute and to possession with intent to distribute marijuana; his PSR and judgment mistakenly listed cocaine instead of marijuana.
- The clerical error did not affect the conviction or the sentence, and counsel did not timely object under Fed. R. Crim. P. 32(f) or move postjudgment to correct the judgment.
- Thirteen years after judgment, Mackay filed a pro se Rule 36 motion to correct the clerical errors; the district court corrected the judgment but denied correction of the PSR, reasoning the PSR is not correctable under Rule 36.
- The government conceded the PSR contained a clerical error and that some BOP records reflect a cocaine conviction, but argued Rule 36 does not reach PSRs and the error was harmless.
- The Fifth Circuit granted review, treated the legal question de novo, concluded the PSR is “other part of the record” under Rule 36, and found the clerical error was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a presentence report (PSR) is a "judgment, order, or other part of the record" correctable under Fed. R. Crim. P. 36 | PSR is part of the record and thus correctable under Rule 36 | PSR is created by probation officers, not the court; Rule 36 should be read to cover only court-created orders/judgments and Rule 32 provides the exclusive remedy for PSR errors | PSR is "of like kind or character" to judgments/orders and is a part of the record under Rule 36; remand to correct the clerical error |
| Whether the PSR clerical error was harmless | The error is not harmless because BOP uses the PSR for classification and some BOP records reflect a cocaine conviction, affecting substantial rights | The error is harmless and alternative administrative remedies exist | Error affects substantial rights (not harmless); correction is required |
Key Cases Cited
- CSX Transp., Inc. v. Ala. Dep’t of Revenue, 131 S. Ct. 1101 (Sup. Ct.) (discussing ejusdem generis and statutory construction)
- Nitro-Lift Techs., L.L.C. v. Howard, 133 S. Ct. 500 (Sup. Ct.) (limiting the specific-governs-general canon to laws of like dignity)
- Matter of W. Tex. Mktg. Corp., 12 F.3d 497 (5th Cir.) (Rule 60(a) applies to party or clerk mistakes and permits clerical corrections)
- United States v. Brown, 715 F.2d 387 (8th Cir.) (discussing the PSR’s effects on custody, classification, and parole)
- United States v. Clayton, 613 F.3d 592 (5th Cir.) (de novo review of legal questions arising from undisputed facts)