UNITED STATES v. NIU (2019)

MEMORANDUM **

Christopher Niu appeals pro se from the district court's order denying his motion under Federal Rule of Criminal Procedure 36 to amend the presentence investigation report (“PSR”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Niu argues that the district court erred by declining to amend the PSR to reflect the three-level aggravating role enhancement agreed to by the parties in the plea agreement, rather than the four-level enhancement recommended by the probation officer. We review for clear error the denial of a Rule 36 motion. See United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985). Assuming without deciding that Rule 36 applies to presentence reports, we conclude that the district court did not clearly err because the change Niu sought was not a clerical change. See United States v. Penna, 319 F.3d 509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for correcting clerical mistakes but it may not be used to correct judicial errors in sentencing.”). Furthermore, Niu did not show that the PSR was erroneous. Niu's contentions that the government breached the plea agreement and that the district court erred by denying his motion for a sentence reduction also do not provide a basis for relief under Rule 36. See Fed. R. Crim. P. 36; Penna, 319 F.3d at 513.

AFFIRMED.