UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

GONZALO GOMEZ-OLIVAS, a/k/a 

Joseph Hernandez, a/k/a Christino, a/k/a 

Bellota, a/k/a Anthony M. Flores, 

 Defendant - Appellant. 

No. 16-8107 

(D.C. No. 2:96-CR-00102-ABJ-1) 

(D. Wyo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, McKAY, and MORITZ, Circuit Judges. 

_________________________________ 

Gonzalo Gomez-Olivas was convicted in 1997 of conspiracy to distribute, and 

to possess with intent to distribute, cocaine and marijuana. See 21 U.S.C. 

§§ 841(a)(1), 846. Based on a total offense level of 40 and a criminal history 

category of IV, the Presentence Investigation Report (PSR) calculated a Guidelines 

range of 360 months to life in prison. The district court adopted these findings and, 

on September 11, 1997, imposed a life sentence. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument wouldn’t materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment isn’t binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 

10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

January 12, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

Nearly two decades later, Gomez-Olivas filed a motion to correct the PSR. 

Specifically, Gomez-Olivas argued that the PSR should reflect an offense level of 38, 

rather than an offense level of 40, and a corresponding Guidelines range of 324 to 

405 months, rather than a Guidelines range of 360 months to life. In support, GomezOlivas cited Rule 36 of the Federal Rules of Criminal Procedure, which allows a 

court to “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.” Fed. R. Crim. P. 

36. The district court denied the motion in relevant part, reasoning that (1) Rule 36 

only allows district courts to correct clerical errors, not substantive ones, and (2) the 

alleged errors that Gomez-Olivas lists constitute substantive errors. 

Proceeding pro se1

 on appeal, Gomez-Olivas asserts this was error. But he 

doesn’t provide any controlling authority that would support that assertion. On the 

contrary, we’ve “previously held that [Rule 36] allows correction of only nonsubstantive errors.” United States v. Lonjose, 663 F.3d 1292, 1299 n.7 (10th Cir. 

2011). More specifically, we’ve explained that “Rule 36 motions apply to clerical 

errors only and are not the proper vehicle to challenge the substance of the 

information in a presentencing report.” United States v. Simon, 36 F. App’x 415, 416 

(10th Cir. 2002) (unpublished); see also United States v. Long, 419 F. App’x 845, 

848 (10th Cir. 2011) (unpublished). Moreover, Gomez-Olivas doesn’t explain why 

we should treat the errors he alleges as clerical—rather than substantive—in nature. 

 1

 Because Gomez-Olivas proceeds pro se, we liberally construe his filings. 

Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). But it’s not our role to 

act as his advocate. Id.
3 

Accordingly, we affirm the district court’s order denying in part Gomez-Olivas’s 

Rule 36 motion. Finally, we grant Gomez-Olivas’s motion to proceed in forma 

pauperis on appeal. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge