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United States v. Vanderhorst

United States Court of Appeals, Fourth Circuit

June 25, 2019

UNITED STATES OF AMERICA Plaintiff - Appellee
v.
LAMONT MARLOE VANDERHORST Defendant-Appellant

          Argued: March 21, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:07-cr-00129-HEH-1)

         ARGUED:

          Mark Everette Edwards, EDWARDS & TRENKLE, PLLC, Durham, North Carolina, for Appellant.

          Michael Calvin Moore, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

          Before WYNN, DIAZ, and THACKER, Circuit Judges.

          Wynn, Circuit Judge.

         Defendant Lamont Marloe Vanderhorst appeals a decision of the U.S. District Court of the Eastern District of Virginia denying his motion under Federal Rule of Criminal Procedure 36 to correct a clerical error in his Pre-Sentence Report ("PSR"). According to Defendant, as a result of that clerical error, the district court wrongly sentenced Defendant as a career offender. In denying Defendant's motion, the District Court held that Rule 36 cannot serve as a vehicle for a defendant to pursue resentencing. Although we disagree with the district court's conclusion that defendants are categorically barred from pursuing resentencing under Rule 36, for the reasons that follow we nonetheless affirm the district court's decision to deny Defendant relief.

         I.

         On September 4, 2007, Defendant pleaded guilty to one count of conspiracy to distribute 5 kilograms or more of powder cocaine. Defendant's PSR listed several prior drug offenses relevant to this appeal, including: 1991 North Carolina state convictions for (1) "trafficking heroin by possession," (2) trafficking heroin by transportation," and (3) "conspiracy to sell and deliver cocaine," and a 1997 New Jersey conviction for (4) "distribution of a controlled dangerous substance." J.A. 158-59. The PSR determined that each of those four convictions constituted a "controlled substance offense" and therefore, that Defendant was subject to sentencing under the career offender guideline, U.S.S.G. § 4B1.1. J.A. 164. Applying the career offender guideline, the PSR calculated Defendant's total offense level as 34, his criminal history category as VI, and his advisory guideline range as 262-327 months' incarceration. Defendant's counsel told the probation officer that he had no objections to the PSR and told the court that he did not find any errors in the calculation of Defendant's guideline range. Relying on that guideline range, the district court sentenced Defendant to 327 months' imprisonment.

         Several years later, Defendant learned that his PSR incorrectly characterized one of his 1991 convictions-rather than being convicted of "conspiracy to sell and deliver cocaine," Defendant had been convicted of "conspiracy to traffick cocaine by transportation." The error in the PSR was attributable to an improper description of the offense in the Wake County, North Carolina Superior Court's electronic database, which the probation officer accessed and relied on in preparing the PSR. It is undisputed that given the nature of the error, Defendant's trial counsel would have had to travel to the Wake County Superior Court Clerk's office and examine the case file to learn of and correct the error. After learning of the error, the Wake County Superior Court corrected the database to reflect Defendant's correct offense of conviction. The Wake County database accurately characterized Defendant's other two 1991 convictions.

         On March 29, 2016, Defendant filed a motion under Rule 36 seeking correction of the "clerical" error in the PSR and resentencing. In his supporting brief, Defendant asserted that, absent the clerical error, he should not have been sentenced as a career offender because none of his three 1991 convictions constituted controlled substances offenses for purposes of the Guidelines. According to Defendant, had he not been sentenced as a career offender, his guideline range would have been 140-175 months' imprisonment-at least 15 years shorter than the sentence he received. In a memorandum opinion and order entered February 23, 2018, the ...


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