2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-29-2015

USA v. George Winkelman

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Recommended Citation

"USA v. George Winkelman" (2015). 2015 Decisions. Paper 1036.

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DLD-348 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2133

___________

UNITED STATES OF AMERICA

v.

GEORGE A. WINKELMAN,

 Appellant

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. 4-01-cr-00304-008)

District Court Judge: Honorable Yvette Kane

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

September 23, 2015

Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges 

(Filed: September 29, 2015)

_________

OPINION*

_________

PER CURIAM

George A. Winkelman, a federal prisoner proceeding pro se, appeals the District 

Court’s order denying his motion pursuant to Rule 36 of the Federal Rules of Criminal 

 

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

constitute binding precedent.
2

Procedure. This appeal presents no substantial question, and we will summarily affirm. 

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

The District Court sentenced Winkelman to prison for 720 months for drugtrafficking and firearms-related convictions. This Court affirmed Winkelman’s 

convictions but remanded for resentencing in light of United States v. Booker, 543 U.S. 

220 (2005), because the sentencing court “engaged in fact-finding regarding the quantity 

of drugs for which [he] was responsible, his leadership role in the offense and his 

obstruction of justice.” United States v. Winkelman, 180 F. App’x 397, 402 (3d Cir. 

402). These facts were presented in Winkelman’s pre-sentence investigation report 

(“PSR”). On remand, the District Court adopted the PSR’s factual findings but exercised 

its discretion to sentence Winkelman to the statutory minimum. 

Winkelman filed the instant motion pursuant to Rule 36, requesting that the 

District Court order the United States Probation Office to correct “clerical errors” in the 

PSR. Specifically, Winkelman sought to strike from the PSR any reference to the 

quantity of drugs, his leadership role, and his obstruction of justice. Winkelman claimed 

that these “clerical errors” have an “adverse action” on his application for clemency and 

would hinder any future effort to be transferred to a lower security prison. The District 

Court denied the motion because the PSR contained no clerical errors.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily affirm if 

the appeal presents no substantial questions. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 

The District Court properly denied relief. Rule 36 provides that “[a]fter giving 

any notice it considers appropriate, the court may at any time correct a clerical error in a 
3

judgment, order, or other part of the record, or correct an error in the record arising from 

oversight or omission.” Fed. R. Crim. P. 36. “A clerical error involves a failure to 

accurately record a statement or action by the court or one of the parties.” United States 

v. Bennett, 423 F.3d 271, 277-78 (3d Cir. 2005) (quotation and citation omitted); see also

United States v. Smalley, 517 F.3d 208, 213 (3d Cir. 2008). As the District Court found, 

the PSR contains no clerical errors—its statements concerning Winkelman’s leadership 

role in a conspiracy involving between 15 and 50 kilograms of cocaine, and that he 

obstructed justice during the investigation, are not “clerical errors.” Moreover, 

Winkelman cannot use Rule 36 to work a substantive change to the PSR on the grounds 

that its findings were not found by a jury. See Bennett, 423 at 277 (“Rule 36 provides no 

basis to correct substantive errors in the sentence.”). Therefore, the District Court 

properly denied relief. 

Because the appeal does not present a substantial question, we will summarily 

affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.