DLD-104 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-2688

___________

UNITED STATES OF AMERICA

v.

DUMONT BUSH,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2-95-cr-00407-006)

District Judge: Honorable James Knoll Gardner

____________________________________

Submitted for Possible Dismissal due to Untimeliness

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

February 5, 2015

Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges

(Opinion filed: February 13, 2015)

_________

OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Dumont Bush appeals the District Court’s order denying his motion filed pursuant 

to Fed. R. Crim. P. 36. For the reasons below, we will summarily affirm the District 

Court’s order.

In 1996, Bush was convicted of bank robbery and conspiracy. He was sentenced 

to 210 months in prison. We affirmed his conviction and sentence on appeal. See United 

States v. Bush, 151 F.3d 1027 (3d Cir. 1998) (table). In December 2012, Bush filed a 

motion to correct a clerical error pursuant to Fed. R. Crim. R. 36. By order entered 

December 12, 2013, the District Court denied the Rule 36 motion as moot. On January 

31, 2014, Bush filed a “Motion to Reinstate Deadline to File Notice of Appeal,” and on 

March 5th, he filed a “Motion to File Notice of Appeal.” Citing Fed. R. App. P. 

4(a)(5)(a), the District Court granted the “Motion to Reinstate” and gave Bush until May 

14th to file his notice of appeal. Bush filed a notice of appeal dated May 5th. The parties 

were notified that the appeal might be dismissed because the notice of appeal was 

untimely filed.

Bush’s motion was filed pursuant to Fed. R. Crim. P. 36. Thus, the time to appeal

is governed by Fed. R. App. P. 4(b) which provides that an appeal must be filed with the 

district court within fourteen days of the entry of the judgment or order being appealed. 

See Fed. R. App. P. 4(b)(1)(A)(i). Bush’s notice of appeal was dated May 5, 2014, more 

than fourteen days after entry of the District Court’s December 12, 2013 order denying 

his Rule 36 motion. However, the deadline is not jurisdictional and may be waived if the 
3

Government does not invoke it. United States v. Muhammad, 701 F.3d 109, 111 (3d Cir. 

2012). Here, the Government has failed to raise the issue. Thus, we will not dismiss the 

appeal as untimely.

Under Rule 36, a District Court may correct a clerical error in a judgment at any 

time. Bush argued that the District Court “erred in failing to adhere to it’s [sic] oral 

pronouncement which contradicts the time and placement of defendant in federal 

custody.” He contended that “[t]he absence of a reference in Mr. Bush’s judgment 

concerning whether Mr. Bush was to receive credit for being in federal custody 

constitutes a clerical error pursuant to Rule 36.” He requested that the District Court 

amend its judgment to recommend that he receive credit for being in custody since 1996.

Bush submitted a copy of his criminal judgment in which the District Court noted 

that “[Bush] is to receive credit for all federal time served in custody pending disposition 

of this case.” Thus, the criminal judgment does include a statement on Bush’s credit for 

time served in federal custody. Bush does not point to any oral announcement at 

sentencing which conflicts with the written judgment. Rather, he appears to believe that 

a discussion at a pre-trial hearing in 1996 about his transfer to federal custody after 

serving a state sentence conflicts with his criminal judgment. The alleged error here does 

not involve a failure to accurately record an action or statement by the District Court. 

See United States v. Bennett, 423 F.3d 271, 277-78 (3d Cir. 2005). Because there was no 

clerical error to be corrected, the District Court did not err in denying Bush’s Rule 36 
4

motion. Moreover, as noted by the District Court, it is the Bureau of Prisons which has 

the authority to calculate the credit that defendants receive for detention before 

sentencing, not the District Court. See United States v. Wilson, 503 U.S. 329, 333

(1992). 

Summary action is appropriate if there is no substantial question presented in the 

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by 

the District Court, we will summarily affirm the District Court’s order. See Third Circuit 

I.O.P. 10.6.