USA v. Derwin McWaine

Filing

UNPUBLISHED OPINION ORDER FILED. [14-60675 Dismissed as Frivolous] Judge: CDK , Judge: EGJ , Judge: CH. Mandate pull date is 05/29/2015; denying motion to proceed IFP filed by Appellant Mr. Derwin Renwick McWaine [7768733-2] [14-60675]

Case: 14-60675

Document: 00513036808

Page: 1

Date Filed: 05/08/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60675
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 8, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
DERWIN RENWICK MCWAINE, also known as Skibow,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:98-CR-22-1
Before KING, JOLLY and HAYNES, Circuit Judges.
PER CURIAM: *
Derwin Renwick McWaine, federal prisoner # 10797-042, was convicted
of conspiracy to distribute crack cocaine, possession with the intent to
distribute marijuana, possession of a firearm by a felon, possession of a firearm
with an obliterated serial number, and nine counts of money laundering. We
affirmed McWaine’s convictions but vacated his sentence and remanded the
case to the district court for resentencing in light of Apprendi v. New Jersey,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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No. 14-60675
530 U.S. 466 (2000). United States v. McWaine, 243 F.3d 871, 874-76 (5th Cir.
2001), overruled on other grounds as recognized by United States v. Randle,
304 F.3d 373, 377 n.2 (5th Cir. 2002). On remand, McWaine was resentenced
to a total of 50 years of imprisonment, which included a statutory maximum
20-year sentence for conspiracy to distribute crack cocaine under 21 U.S.C.
§ 841(b)(1)(C). His subsequent appeal was unsuccessful. United States v.
McWaine, 290 F.3d 269, 277 (5th Cir. 2002).
Subsequently, McWaine moved the district court to correct a purported
clerical error under Federal Rule of Criminal Procedure 36. He asserted that
the Presentence Report (PSR) had not been revised prior to his resentencing
and still reflected that he was subject to the statutory sentencing range of 21
U.S.C. § 841(b)(1)(A). The district court denied the Rule 36 motion and denied
McWaine leave to proceed in forma pauperis (IFP) on appeal, finding that the
appeal would be frivolous.
Rule 36 provides that the district court “may at any time correct a clerical
error in a judgment, order, or other part of the record, or correct an error in the
record arising from oversight or omission.” FED. R. CRIM. P. 36. A clerical error
occurs when the court intends to do one thing but through clerical mistake or
oversight does another. United States v. Buendia-Rangel, 553 F.3d 378, 379
(5th Cir. 2008). McWaine’s PSR does not have a clerical error. The purported
error in the PSR is not clerical in nature and was corrected on direct appeal.
See id.; see also McWaine, 243 F.3d at 875-76. To the extent McWaine argues
that he was sentenced under an improperly calculated guidelines range, the
arguments presented by McWaine challenge the sentence imposed and not a
clerical error.
Because McWaine is clearly not entitled to relief under Rule 36, his
appeal does not present any nonfrivolous issue, and he has not shown that it

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is taken in good faith. See United States v. Boutwell, 896 F.2d 884, 889-90 (5th
Cir. 1990); see also Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, his motion for leave to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 5TH CIR. R. 42.2.

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