United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2074

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Calvin Eugene Yakle, *

* [PUBLISHED]

Appellant. *

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Submitted: January 9, 2006.

Filed: September 15, 2006

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Before WOLLMAN, JOHN R.GIBSON, and ARNOLD, Circuit Judges.

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PER CURIAM.

Calvin Yakle was convicted six years ago of conspiring to distribute

methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846. No drug quantity was laid in the

indictment and the jury made no finding with respect to the quantity. At his

sentencing hearing, Mr. Yakle objected to the amount of drugs that the presentence

investigation report (PSR) attributed to him, but the district court found that the trial

record supported the PSR's conclusion and sentenced Mr. Yakle to 262 months'

imprisonment based on the amount recited in the PSR. On appeal, we affirmed

Mr. Yakle's conviction but remanded his case for resentencing because the district

court's drug-quantity finding had violated Apprendi v. New Jersey, 530 U.S. 466
1

The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

-2-

(2000). See United States v. Yakle, No. 99-3918, 1 Fed. Appdx. 586, 588-89 (8th Cir.

Jan. 11, 2001) (unpublished per curiam). On remand, the district court sentenced

Mr. Yakle to 210 months' imprisonment based on the jury's finding that Mr. Yakle's

conspiracy involved some undetermined amount of drugs.

Three and a half years later, Mr. Yakle filed a motion under Fed. R. Crim. P. 36

to correct what he terms a clerical error. Mr. Yakle did not complain about his

sentence. His complaint was that the court had not complied with the rule then in

effect that required a court to append a copy of its findings on any controverted matter

in a PSR to any copy of that report made available to the Bureau of Prisons (BOP).

Fed. R. Crim. P. 32(c)(1) (2001); cf. Fed. R. Crim. P. 32(i)(3)(C). Mr. Yakle claimed

that his 210-month sentence was not based on any particular drug quantity and that

therefore the district court should have appended a memorandum to his PSR to that

effect. He says that the BOP uses drug amounts involved in convictions to classify

prisoners and that the recitations in the PSR affect the conditions of his incarceration

in other ways. Cf. United States v. Brown, 715 F.2d 387, 389 n.2 (8th Cir. 1983).

The district court1

 denied Mr. Yakle's motion.

In the first place, the district court never made an explicit finding on the record

that it was not sentencing Mr. Yakle based on the amount of drugs contained in the

PSR. It simply made that assumption sub silentio after our remand based on

Apprendi. There were therefore no findings to append to the copy of the PSR sent to

the BOP. Even if there had been such findings, we do not think that a failure to

append them to the report could be classified as a clerical error. Rule 32(c)(1)

directed a sentencing court to do something, and a failure to follow the rule is a legal

error, not a clerical one. That is why a violation of the rule is cognizable in a petition

for relief under 28 U.S.C. § 2255. See Poor Thunder v. United States, 810 F.2d 817
-3-

(8th Cir. 1987). This case is unlike cases in which commitment papers contain an

erroneous recital of the sentence that a court imposed. See, e.g., Kennedy v. Reid,

249 F.2d 492, 495-96 (D.C. Cir. 1957). We note that the BOP may take notice that

the district court sentenced Mr. Yakle based on some undetermined amount of drugs,

and not on the amount of drugs rehearsed in the PSR. That is what we directed the

district court to do on remand. Perhaps, too, the BOP has internal grievance

procedures that Mr. Yakle can pursue. But there is no mere scrivener's mistake here,

and so we cannot afford Mr. Yakle relief under Rule 36.

Affirmed.

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