*

After examining the briefs and the record, we have concluded that oral argument is

unnecessary.  Thus, the appeal is submitted on the briefs and the record.  See FED. R. APP. P.

34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted October 2, 2008*

Decided October 2, 2008

Before

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

          TERENCE T. EVANS, Circuit Judge

No. 08‐1474

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

CARLTON LAMONT CHANEY,

Defendant‐Appellant.

Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:97CR00068‐001

Larry J. McKinney,

Judge.

O R D E R

Carlton Chaney has a prior history with this court.  See Chaney v. United States, 101

Fed. App’x 160 (7th Cir. 2004); Chaney v. Olson, 92 Fed. App’x 362 (7th Cir. 2004); United

States v. Chaney, No. 98‐1655, 1998 WL 789891 (7th Cir. Oct. 23, 1998).  In this latest appeal

he argues that the district court erred in denying his motion under Federal Rule of Criminal

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1474 Page 2

Procedure 36 to correct a purported clerical error.  But Chaney’s motion sought substantive

relief well beyond the scope of Rule 36, so the district court was correct to deny it.

We need not recap all the details of Chaney’s criminal convictions because they are

available elsewhere.  See Chaney, 101 Fed. App’x at 161‐64; Chaney, 1998 WL 789891, at *1‐3.

As relevant to this appeal, Chaney and two others robbed a bank in Indianapolis, Indiana,

on a spring morning in 1997.  Chaney’s confederates absconded in a Cadillac; Chaney chose

a Chevrolet Suburban.  Donna Dauby—a citizen bystander who had witnessed the robbery

from her Ford Ranger pickup truck—called 911 and decided to pursue the Cadillac.  When

the Cadillac slowed to a stop a few minutes later, so too did Dauby.  Chaney appeared

suddenly in the Suburban, pointed it at Dauby, and crashed into the driver’s side of her

pickup.  Although the collision caused considerable damage, Dauby was able to speed

away.  But Chaney didn’t stop there: he fled the scene, carjacked an Oldsmobile, and, weeks

later, pulled a gun on the arresting officers who finally found him.  Chaney was convicted

of armed bank robbery, carjacking, possession of a firearm by a felon, and twice using a

firearm while committing a crime of violence.  See 18 U.S.C. §§ 922(g)(1), 924(c), 2113, 2119.

The district court sentenced him to a total of 430 months’ imprisonment, and we affirmed

the judgment of the district court on direct appeal.  Chaney, 1998 WL 789891, at *4.

Chaney next sought relief under 28 U.S.C. § 2255, arguing, as relevant here, that his

counsel had been ineffective at sentencing by failing to object to a two‐level upward

adjustment for reckless endangerment during flight.  See U.S.S.G. § 3C1.2.  At the time of the

collision with Dauby, Chaney reasoned, he was not fleeing from a law‐enforcement officer.

See id.  The district court agreed that the adjustment was inappropriate.  No doubt the

collision presented a substantial risk of death or serious bodily injury to Dauby.  See id.  But

there was no evidence, according to the court, that law‐enforcement officers were pursuing

Chaney at the time.  See id.  Still, Chaney could not demonstrate that he was prejudiced by

his attorney’s failure to object.  See Strickland v. Washington, 466 U.S. 668, 687 (1984).  Even

without the two‐level adjustment, the court wrote, Chaney’s combined offense level

remained the same, see U.S.S.G. § 3D1.4, and so too did his guidelines range.  Accordingly,

the court denied Chaney’s motion.  The court did, however, issue a separate order in which

it vacated “the court’s previous finding that a sentencing enhancement pursuant to

USSG § 3C1.2“ was applicable and directed “that this Entry be appended to the Presentence

Investigation Report.”  The court continued:

The foregoing is the remedial action which is warranted based on the court’s

present determination, to correct its earlier contrary determination in

paragraph 30 of the Presentence Investigation Report, that the obstruction of

justice (fleeing law enforcement) enhancement pursuant to USSG § 3C1.2, was

not warranted by the circumstances of the defendant’s offense of armed bank

robbery as charged in count 1 of the indictment.  This correction does not alter
No. 08‐1474 Page 3

the defendant’s sentence under count 1 of the indictment or otherwise, but is

issued to inform the defendant and proper authorities of the court’s action.

Chaney appealed the denial of his motion, although on appeal he abandoned his

failure‐to‐object theory of ineffective assistance of counsel, and we affirmed in any event.

Chaney, 101 Fed. App’x at 166.  One year later—in 2005—Chaney filed a second motion

under 28 U.S.C. § 2255 in the district court, which the court dismissed as an unauthorized

successive collateral attack.  Chaney appealed yet again, but we denied his request for a

certificate of appealability.  See Chaney v. United States, No. 05‐3897 (7th Cir. Dec. 20, 2005).

Chaney, undeterred, tried a new tack in 2007.  This time he filed, in the district court,

a “Motion to Correct Clerical Error[] Pursuant to Fed. R. Crim. P. 36ʺ in which he asked the

court, in light of its five‐year‐old separate order, “to properly correct judgment of March 5,

1998 [Chaney’s sentencing hearing] to reflect evidence showing Mr. Chaney could not be in

a get‐a‐way vehicle on the day when the crimes were committed.”  The district court denied

the motion, explaining that “[t]his court’s finding that the U.S.S.G. § 3C1.2 enhancement did

not apply in no way inferred that Chaney was not the driver of or passenger in the

Suburban.”

On appeal Chaney contends that, in the wake of its order scotching the two‐level

adjustment, the district court was obligated to delete various portions of the presentence

report, vacate Chaney’s conviction for armed bank robbery, and resentence him

accordingly.  And, Chaney continues, Rule 36 was the proper vehicle for this request.  He is

wrong on both counts.  Rule 36 is reserved for clerical errors.  See FED. R. CRIM. P. 36; United

States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008).  Its enables correction “at any time” if a

judge’s oral pronouncement of a sentence does not match the written judgment that follows.

See FED. R. CRIM. P. 36; United States v. Becker, 36 F.3d 708, 709‐10 & 710 n.2 (7th Cir. 1994).

Rule 36 is not, however, a vehicle for raising substantive challenges to a sentence.  Becker, 36

F.3d at 710 n.2.  Chaney’s motion fails because it has nothing to do with clerical error.

AFFIRMED.