United States District Court

Eastern District of Michigan

Southern Division

United States of America,

Plaintiff, Case No. 15-CR-20382

v. Honorable Victoria A. Roberts

 Magistrate Judge Elizabeth Stafford

D-1 Paul Nicoletti,

 

Defendant.

/

Government’s Response and Brief in Opposition to Defendant’s 

Motion to Correct Amended Judgment (ECF No. 227) 

The United States of America, by its undersigned counsel, respectfully 

requests that the Court deny Defendant Nicoletti’s Motion to Correct Amended 

Judgment (ECF No. 227) because there is no authority permitting the Court to 

reopen the issue of restitution as Nicoletti requests.

Nicoletti, who stipulated to the restitution amount at sentencing, now seeks 

to attack the restitution order under the guise of “correcting” a clerical error. (ECF 

179, PageID. 2884-2885: Sentencing Transcript; ECF No. 227, PageID. 3492: 

Defendant’s Motion to Correct Amended Judgment Based on Clerical Error). But 

Nicoletti’s motion has nothing to do with clerical errors. Rather, his bases are 

substantive challenges to the methods and manner of arriving at the final restitution 

figure, specifically arguing that this Court did not apply the correct sentencing 

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statute (ECF No. 227, PageID. 3494), included restitution for uncharged conduct 

(ECF No. 227, PageID. 3497), based the restitution figure on inaccurate loan 

amounts (ECF No. 227, PageID. 3499), failed to account for a civil settlement of a 

co-defendant (ECF No. 227, PageID. 3500), and failed to credit him with insurance 

settlements (ECF No. 227, PageID. 3500-3502). Thus, Rule 36 does not apply.

Fed. R. Crim. P. 36 provides in pertinent part that: “. . . the 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.” The rule’s scope 

is strictly limited:

Although the federal rules do not define what constitutes 

a clerical error, this court has held that “a clerical error 

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.” United 

States v. Coleman, 229 F.3d 1154, 2000 WL 1182460, at 

*2 (6th Cir. Aug.15, 2000) (unpublished) (quoting United 

States v. Burd, 86 F.3d 285, 288 (2d Cir.1996)). Rule 36 

has been consistently interpreted as dealing only with 

clerical errors, not with mistakes or omissions by the 

court. See 3 Charles Alan Wright, Nancy J. King & 

Susan R. Klein, Federal Practice & Procedure § 611 (3d 

ed. 2004) (“It is only a clerical error that may be 

corrected at any time under [Rule 36]. An error arising 

from oversight or omission by the court, rather than 

through a clerical mistake, is not within the purview of 

the rule.”).

United States v. Robinson, 368 F.3d 653, 656 (6th Cir. 2004); see also: United 

States v. Jones, 608 F.2d 386 (9th Cir. 1979)(Rule 36 “intended to allow correction 

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of clerical errors, not to allow reassessment of the merits of an earlier decision after 

the time for reconsideration or appeal has elapsed); United States v. Blackwell, 81 

F.3d 945 (10th Cir. 1996)(Rule 36 does not authorize substantive sentencing 

modification); United States v. Llanos, 59 Fed.Appx. 412, 2003 WL 1026003 (2d 

Cir. 2003), cert. denied 540 U.S. 857 (Rule 36 not appropriate vehicle for

defendant seeking to modify presentence report).

Now, nearly 18 months after sentence was imposed at a hearing in which he 

stipulated to the restitution amount, and after his direct appeal has been decided, 

Nicoletti seeks to relitigate restitution under Rule 36. As noted above, he does not 

base his motion on even one clerical error; rather, he challenges the restitution 

order substantively on various grounds. Neither Rule 36, nor any other authority

known to the government, permits such a challenge. His motion should, 

accordingly, be denied.

Respectfully submitted,

Saima S. Mohsin

Acting United States Attorney

s/Craig A. Weier

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

(313) 226-9678

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CERTIFICATE OF SERVICE

I certify that on June 25, 2021, I sent the foregoing document with 

attachments to the defendant by email to: pauljnicoletti@gmail.com, and will follow 

this notification by sending the same, by United States Mail, to: 7474 Port Austin 

Road, Caseville, MI 48725

s/Craig A. Weier 

Craig A. Weier (P33261)

Assistant United States Attorney

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