UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4242

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARLON BRADFORD SUMMERVILLE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:03-cr-00462-GBL)

Submitted: May 11, 2007 Decided: June 15, 2007

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeffrey D. Zimmerman, THE LAW OFFICE OF JEFFREY D. ZIMMERMAN,

Alexandria, Virginia, for Appellant. Chuck Rosenberg, United

States Attorney, Jonathan T. Baum, Special Assistant United States

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Marlon Bradford Summerville was indicted for conspiracy

to possess with intent to distribute and to distribute fifty grams

or more of cocaine base within 1000 feet of a school, in violation

of 21 U.S.C. §§ 841(a)(1), 846 and 860 (2003). On June 30, 2004,

a jury convicted Summerville, but found him guilty of conspiracy to

distribute and possess with intent to distribute less than five

grams of cocaine within 1000 feet of a school. On July 9, 2004,

Summerville moved for judgment of acquittal pursuant to Fed. R.

Crim. P. 29. The district court denied the motion during the

September 10, 2004 sentencing hearing. The court sentenced

Summerville to 110 months imprisonment, but in accordance with this

court’s decision in United States v. Hammoud, 381 F.3d 316, 353

(4th Cir. 2004) (en banc), vacated by 543 U.S. 1097 (2005),

announced that if the guidelines were invalidated, Summerville’s

alternative sentence would be eighty-four months in prison. The

court entered its judgment and order denying Summerville’s Fed. R.

Crim. P. 29 motion on September 13 and 15, 2004. The judgment

erroneously recited that the jury found the defendant guilty of

conspiracy to possess with intent to distribute fifty grams or more

of cocaine base within 1000 feet of a school, instead of five or

less grams. Summerville did not appeal his conviction or sentence.

In July 2005, Summerville filed a pro se motion in the

district court seeking the imposition of the alternative sentence
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of eighty-four months, in light of the decision in United States v.

Booker, 543 U.S. 220 (2005). On August 5, 2005, counsel for

Summerville filed a Fed. R. Crim. P. 36 motion, asking the court to

correct its judgment to reflect the jury’s finding of five grams or

less of cocaine and seeking to have the lesser alternative sentence

implemented. The district court agreed that the jury found

Summerville guilty of the lesser amount of cocaine base and stated

that it would correct the judgment, but took Summerville’s request

for the imposition of the alternative sentence under advisement. 

On February 15, 2006, the court entered its order

granting Summerville’s motion to correct the clerical error in the

judgment, and denying his request for the court to impose the

lesser alternative sentence. The district court concluded it was

inappropriate to modify Summerville’s sentence because there was no

indication in the record that the court considered the 18 U.S.C.

§ 3553(a) factors in formatting its alternative sentence and

accordingly, the alternative sentence was not in compliance with

Booker or United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005). Therefore, on February 14, 2006, the court granted in part

and denied in part Summerville’s Rule 36 motion. Summerville

timely appealed the February 14, 2006 order. 

Under Rule 36, a district court may correct clerical

errors in the judgment or errors in the record arising from

oversight or omission. The district court correctly granted the
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Rule 36 motion as to the error regarding the drug quantity for

which Summerville was convicted. We conclude, however, that the

district court was without jurisdiction to consider that aspect of

the Rule 36 motion seeking implementation of the lesser alternative

sentence.

Summerville did not appeal his conviction or sentence,

and he may not seek to raise a Booker sentencing claim through a

Rule 36 motion. The district court does not possess the authority

to modify a sentence under Rule 36, United States v. Fraley, 988

F.2d 4 (4th Cir. 1993), nor does Booker provide a jurisdictional

vehicle to activate the lesser alternative sentence. The Hammoud

decision provided district courts with the power to announce

alternative sentences and nothing more. While such an alternative

sentence plays a role during a resentencing required by Booker,

Booker applies only to cases that were pending on appellate review

when it was decided. Because Summerville did not appeal his

original sentence, his case was not pending on direct review when

Booker was decided. Booker thus does not provide a jurisdictional

means by which to impose the lesser alternative sentence. 

Implicit in the district court’s announcement of an

alternative sentence was the necessity for Summerville to file a

timely notice of appeal in order to preserve his right to contest

his sentence and to have the alternative sentence imposed. To the
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extent that Summerville now wishes to challenge his conviction and

sentence, the appeal period has long expired. 

Because the district court lacked jurisdiction to

consider the merits of Summerville’s arguments pertaining to the

alternative sentence, we affirm that aspect of the district court’s

order on modified grounds to reflect its denial of the Fed. R.

Crim. P. 36 motion for lack of jurisdiction. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED