Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20038

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN PAUL ROTH,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:97-CR-96-1

Before GARWOOD, DENNIS and ELROD, Circuit Judges.

PER CURIAM:*

John Paul Roth, federal prisoner # 76094-079, appeals the district court’s

denial of his motion filed in December 2008 under Federal Rule of Criminal

Procedure 36 to correct an alleged clerical error in the district court’s 1999

judgment of conviction. In December 1996, Roth was arrested by state officials

on charges of drug possession. A Texas court sentenced him to a 20-year prison

term in August 1997. That same month in federal court, he pleaded guilty,

pursuant to a plea agreement, to participating in a drug conspiracy and a

United States Court of Appeals

Fifth Circuit

F I L E D

December 28, 2009

Charles R. Fulbruge III

Clerk
No. 09-20038

In late August 1997, Roth was brought into federal custody from state custody, where

1

he was serving his state sentence, by the federal court’s writ of habeas corpus ad

prosequendum; he also asserts that two days after his January 1999 federal sentence he was

transferred back to state custody to serve his state sentence, that in May 2001 he was paroled

from his state sentence and was to taken into federal custody to serve the remainder of his

federal sentence.

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conspiracy to launder money. Though Roth’s prior convictions made him eligible

for a mandatory sentence of life imprisonment, the district court granted the

Government’s motion under U.S.S.G. § 5K1.1 (substantial cooperation) and

sentenced Roth to concurrent prison terms: 264 months on the drug count and

240 months on the money-laundering count. After the court entered judgment,

it granted the Government’s agreed motion to amend it, as relevant here, “to

reflect that the sentences imposed in the federal case (264 and 240 months) are

to run concurrent to the defendant’s sentence imposed” in state court. The court

then entered the amended judgment, recommending that Roth’s sentence “run

concurrent to the term imposed” in the Texas court.

The Board of Prisons determined that Roth was entitled to credit on his

federal sentence for the approximately nine months that he spent in state

custody after his arrest but before he was sentenced in Texas. According to

Roth, he is also eligible to receive credit for the some 17 months served in state

custody after he received his state sentence in August 1997 but before he was

sentenced in federal court in January 1999 (this time apparently was credited

against his state sentence). Roth argues that the 1999 federal judgment does 1

not clearly reflect the sentencing court’s intent that the state and federal

sentences run “fully concurrently.”

Roth has not established that the district court erred in denying his

instant Rule 36 motion to correct the judgment. A district court “may at any

time correct a clerical error in a judgment” that arises from an “oversight or

omission.” FED. R. CRIM. P. 36. A clerical error occurs when “the court intended

one thing but by merely clerical mistake or oversight did another.” United
No. 09-20038

Relief under 28 U.S.C. § 2255 has not been sought and is in any event plainly and

2

facially barred by limitations under 28 U.S.C. § 2255(f).

3

States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008) (quoting United

States v. Steen, 55 F.3d 1022, 1026 n.3 (5th Cir. 1995)). Nothing in the record

establishes that the district court’s judgment did not accurately reflect its intent.

The judgment does not contradict anything that the judge said at the sentencing

hearing. See United States v. Slanina, 359 F.3d 356, 357-58 (5th Cir. 2004) (per

curiam). Indeed, the record shows that the court crafted the relevant portion of

the judgment expressly as the parties requested in the agreed motion to amend

the judgment. Roth’s argument that the judgment does not reflect the court’s

intent to apply U.S.S.G § 5G1.3(b) is misplaced because no mention of this

guideline was made at sentencing, so there is no evidence that the court

intended for it to have any effect on the sentence. Moreover, Roth is not entitled,

as he insists, to a more detailed explanation in the judgment regarding how the

sentence should be executed. The judgment is consistent with the court’s verbal

explanation of the sentence and its grant of the motion to amend the judgment;

thus Rule 36 cannot be used to clarify the sentence. See United States v. Patrick

Petroleum Corp., 703 F.2d 94, 98 (5th Cir. 1982).

To the extent that Roth argues that the Bureau of Prisons has incorrectly

calculated his sentence, this claim is not cognizable in a motion under Rule 36.

See United States v. Mares, 868 F.2d 151, 151 (5th Cir. 1989). Rather, Roth

must raise it in a motion under 28 U.S.C. § 2241 filed in the district where he is

incarcerated. Id. at 151-52.2

The decision of the district court is AFFIRMED.