US v. Howard Scott

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00991-PMD-1. Copies to all parties and the district court/agency. [998841796]. Mailed to: Howard Scott. [11-7669]

Appeal: 11-7669

Document: 7

Date Filed: 04/27/2012

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7669

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD SCOTT,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00991-PMD-1)

Submitted:

April 23, 2012

Decided:

April 27, 2012

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Howard Scott, Appellant Pro Se.
Matthew J. Modica, Assistant
United
States
Attorney,
Charleston,
South
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-7669

Document: 7

Date Filed: 04/27/2012

Page: 2 of 4

PER CURIAM:
Howard Scott pled guilty to one count of possession
with the intent to distribute a quantity of heroin, in violation
of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 2006 & Supp. 2011),
and was sentenced to 188 months’ imprisonment.

He now appeals

the district court’s denial of his Fed. R. Crim. P. 36 motion
seeking the correction of an error in the transcript of his
guilty plea hearing.

We have reviewed the record and find no

reversible error.
The basis of Scott’s motion concerns a statement made
by counsel for the Government at the guilty plea hearing.

The

transcript of the hearing reflects that, after Scott affirmed
his

guilt

to

the

charge

in

the

indictment,

counsel

for

the

Government, while summarizing the relevant evidence, stated that
175 grams of heroin were associated with 465 glassine bags found
during

a

search.

evidence,

and

the

Following

this

judgment,

United

Scott
district

court’s
States

agreed

with

court

this

accepted

his

affirmance

of

v.

426 F. App’x

Scott,

the

summary

of

guilty

district
169,

the

plea.

court’s
171-72

(4th Cir. 2011) (No. 10–5175), Scott filed the subject motion
under Rule 36 to correct the record.
Scott argued in the motion that, in making his oral
summation of the evidence at the guilty plea hearing, counsel
for the Government read from a forensic report that concluded
2

Appeal: 11-7669

that

Document: 7

a

drug

Date Filed: 04/27/2012

analysis

of

the

Page: 3 of 4

465

glassine

bags

revealed

“a

combined weight of 0.75 grams” of heroin in the sample tested.
In

an

affidavit

accompanying

the

motion

that

is

not

contradicted by any evidence in the record, Scott averred that,
at the guilty plea hearing, counsel for the Government “read off
of the report” that the amount of heroin associated with the 465
glassine bags was 0.75 grams, not the 175 grams listed in the
hearing

transcript.

uncontradicted

The

evidence

is

obvious
that

inference

the

court

from

reporter

this
made

a

clerical error in transcribing the amount as 175 grams.

Such an

error

P.

was

subject

to

correction

under

Fed.

R.

Crim.

36.

See, e.g., United States v. Burd, 86 F.3d 285, 288 (2d Cir.
1996) (“A clerical error [subject to correction under Rule 36]
must not be one of judgment or even of misidentification, but
merely of recitation, of the sort that a clerk or amanuensis
might commit, mechanical in nature.” (internal quotation marks
and

alteration

536 F.2d

420,

omitted));
425

(D.C.

United
Cir.

1976)

States

v.

(rejecting

Vecchiarello,
an

argument

challenging the district court’s correction of an error in the
stenographer’s notes of a sentencing hearing and citing to Rule
36 for the proposition that the court had “the duty and power”
to correct errors in the record).
Nevertheless, we conclude that there is no need to
remand this case to the district court for correction of the
3

Appeal: 11-7669

Document: 7

error.

Date Filed: 04/27/2012

Page: 4 of 4

The error in the transcript and the district court’s

failure to correct it are harmless under Fed. R. Crim. P. 52(a),
because Scott does not contest the validity of his conviction or
sentence, and because our review of the record indicates that
the

error

in

no

way

undermines

conviction or sentence.

or

otherwise

affects

Scott’s

Accordingly, we affirm the district

court’s order denying Scott’s Fed. R. Crim. P. 36 motion to
correct the transcript of his guilty plea hearing.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

4