listed offenses trafficking in heroin by possession and trafficking by transportation constitute controlled substance offenses under the senate's a guidelines it would have to be a situation where was manufacturing importation exportation distribution or  sing or possession of controlled substance with intent to manufacture import export distribute distribute or dissent and under the elements of north carolina along the track and fences none of those elements you don't have to have those simply possessing the drugs is enough to establish the offense of tracking by possession simply transporting the drugs is enough to constitute tracking by possession so i believe those two offenses would not have counted anyway so even if we brought forth that there was an issue but in house case the attorney later found four years later after the sentencing that there was an issue with one of those convictions to say that the trial attorney to you asking us to even extend affected the senate saying and they were later correct well i would obviously ask for a man to the district court for correcting the p s r in the case which still has admitted but if you did you still got bills and he'll still say well you got no this is already there nothing well that that point if  conviction correct they're going to type it into a computer and they're going to say it is clear that if klein well it's at that point that had been the passage of one hundred sixteen years seventeen but again the senate is it's going to create if he is not released it is going to mean that defense attorneys on these cases are going to physically have to go to court houses and examine files i've had clients from new jersey california texas now presume i assume that  court my name is michael moore and i represent the united states in this matter in two thousand and seven the district court sentenced mr vanderhorst to a three hundred twenty seven term of imprisonment apply a career offender and handsome and based on convictions in north carolina and one in new jersey to wish defense counsel in the underlying case of joshing whatsoever i disagree with counsel's assertion that there was no way through the exercise  incentive to do that given the state of record because there were other offenses that satisfied the enhanced so i think that that speculation and the the way that you would make a record on that is through a twenty to fifty five motion and a hearing on that if  the district court felt that there was a hearing but we're all thirty six is not the vehicle through which to make those types of corrections or changes to a sentence in fact this court and every other federal circuit that is determine the issue in any sort of published opinion has stated very clearly that will thirty six is confined strictly to the correction of clerical errors and not to the correction of of legal or  legal errors or substantive issues i'm in fact the seventh circuit is specifically stated that in the end this specific context in the way i'm scase that where there's an attempt to basically get a redo on a characterization outlier and to be fair to the power all this court had not actually decided the good one case when that case was decided and prior to good when there was very very little discussion in this circuit about eighteen u s c section thirty five eighty two c which rule thirty six really has to be read in conjunction with in fact rule thirty six cannot trump that statute which was passed by congress and signed into law by the president and  is this court affirmed in good one thirty five eighty two c provides that the only circumstances under which a court can modify a previously imposed term of imprisonment are a motion filed by the bureau of prisons retroactive amendment of the guideline range by the sentencing commission or express permission via rule thirty five for some other statute and none of those conditions exist here as the district court noted and therefore the district court quite properly  refused to read rule thirty six in a way that would allow it to provide relief to a defendant the congress didn't specifically authorize and that's actually i guess will thirty five eighty two see trumps will thirty six in this context certainly moreover the structure of rule thirty six would suggest pretty strongly that that it doesn't provide relief here in fact it's important to note that rule thirty six allows correction of clerical errors without any notice to the parties that it would be odd indeed if that vehicle was used to in essence get a redo on sensing where a sensing involves  briefing of issues prior to reading of issues prior to actually going into core argument on issues like here the career ender enhancement which would also have to involve litigation of issues under north carolina law copies certified copies of conviction orders so if counsel requested copies of those conviction orders this issue could be resolved simply by looking at the and by being cognizant of and familiar with state law which is just a general part of practicing in federal court particularly with respect to the application of these enhancements but the government's position is that rule thirty six is not the vehicle here there may well be other vehicles if indeed this is air or to be it would exist whil honor it is not your honor but the point i'm trying to make is that there are other vehicles through which this might be attacked or and it's not the government's burden to say whether what other vehicles there are the issue the limited issue before the district court and the limited issue here is whether rule thirty six is the appropriate vehicle and the other masers release of very strong situational wrong year terms of what's going on but your point well taken that procedur the the argument that at least with respect to the strip correction of the p s r that that's never happened this case just correcting the record to reflect the proper offense well the the government's reluctant to adopt any portion of the powell opinion or endorse any portion of that it would certainly be less it would certainly be more in accordance with rule six and that that clerical error could be corrected and that's what the fifth circuit did in the maquis case however i think that in terms of correcting clerical errors on the record it really should be limited could have a situation for instance where a defendant gets diagnosed with bipolar disorder ten years after the fact and he's trying to get his p s r corrected because it reflected that he didn't have an email health problems part of that  and i'm concerned that even allowing the sort of limited relief of correcting the p s r here that um that would open the door to further uses of will throw eggs i mean that's a good example of that's not this case and the historic record is what it was right ye requested a copy of the record a conviction from the probation officer it appears that probation officer did have it because they put in the incorrect information that could only be obtained through an n c i c so apparently they didn't have those documents and i'm not for me with the practice that occurs i've been doing federal cases now twenty three twenty four years but i'm not sure that a probation officer is going to take that step and get it for me i think they're going to say you need to look at the record yourself and and nine percent of the time the first thing the probation officer says is to the to the client i don't work for the government i don't work for your client i work for the court my job is to report back to the court ok it's a very important role if they know for the questions