Rule 36 Is Not a Back-Dating Device: Sixth Circuit Re-defines the Narrow Ambit of “Clerical Error” in United States v. Marzell Anderson, III

Introduction

The Sixth Circuit’s unpublished opinion in United States v. Marzell Anderson, III (No. 25-1005, July 3 2025) tackles an increasingly common problem: defendants who spend years in state custody while federal firearms charges remain unresolved, and who later seek to “backdate” their federal sentences to capture that interim time. Anderson attempted the maneuver through Federal Rule of Criminal Procedure 36, contending that the written judgment mistakenly omitted the judge’s “true intent” to start his sentence in 2018. The district court refused, and the Sixth Circuit affirmed, laying down a crisp rule: Rule 36 corrects clerical mis‐recitations only; it cannot alter the substance, timing, or length of a sentence, nor can it cure a judicial misunderstanding about Bureau of Prisons (BOP) credit-calculation authority.

The case involves three layers of complexity—federal/state custody overlap, post-Wooden recalibration of the Armed Career Criminal Act (ACCA), and the interplay between Rules 35 and 36. Although “not recommended for publication,” the decision crystallises how narrowly Sixth Circuit jurisprudence reads Rule 36 and warns practitioners that post-sentencing relief must come, if at all, via Rule 35(a) within fourteen days or a direct appeal, not Rule 36.

Summary of the Judgment

• Anderson pled guilty to one § 922(g) count; his original Presentence Investigation Report (PSR) pegged him as an ACCA offender with a 15-year mandatory minimum.
• After Wooden v. United States (2022) narrowed “different occasions,” the PSR was amended, producing a 110–120 month Guidelines range.
• At sentencing, defense counsel asked the court to “credit” Anderson for time spent in state custody since October 22 2018. The district court recommended to the BOP that credit be given, but orally imposed a straightforward 110-month sentence concurrent to the undischarged state terms.
• Six months later, Anderson filed a Rule 36 motion asserting that the written judgment “contradicted” the court’s intent, and that the sentence should actually have begun on 22 October 2018.
• The district court held it lacked authority under Rule 36 and denied the motion. On appeal, the Sixth Circuit (Judge Karen Nelson Moore writing) affirmed, reasoning that Anderson sought a substantive change, not a clerical correction.

Analysis

A. Precedents Cited and Their Role

• United States v. Robinson, 368 F.3d 653 (6th Cir. 2004) — Defines “clerical error” under Rule 36 as one “mechanical in nature,” suitable for correction only if it is a slip “a clerk or amanuensis might commit.” Anderson heavily relies on Robinson’s articulation; the panel applies it to reject Anderson’s argument.
• United States v. Coleman, 2000 WL 1182460 (6th Cir. 2000) — Quoted for the proposition that Rule 36 does not empower courts to revise their unexpressed sentencing expectations.
• United States v. Ferguson, 918 F.2d 627 (6th Cir. 1990) — Earlier warning that substantive sentence alterations are “not within the ambit of Rule 36.”
• United States v. Hampton, 732 F.3d 687 (6th Cir. 2013) — Cited for the non-jurisdictional nature of appeal waivers, allowing the court to reach the merits.
• Wooden v. United States, 595 U.S. 360 (2022) — Though not a Rule 36 precedent, Wooden drove the recalculated range, showing the dynamic posture of Anderson’s case.

B. Legal Reasoning

1. Scope of Rule 36 — The court emphasises Rule 36’s text: “clerical error” or “oversight or omission.” Drawing on Robinson and Coleman, Judge Moore underscores that Rule 36 cannot recalibrate the length or start date of a sentence. Any adjustment that changes the period of incarceration is substantive, not clerical.

2. BOP Credit vs. Judicial Back-Dating — 18 U.S.C. § 3585(b) reserves credit allocation to the BOP only if the jail time “has not been credited against another sentence.” Because Anderson’s state sentence had already absorbed the 2018-2023 period, the BOP is statutorily barred from “double-counting.” The district court’s recommendation was therefore advisory and, practically, ineffectual; nonetheless, the written judgment mirrored the oral pronouncement, so no clerical error existed.

3. Proper Vehicles for Relief — The panel highlights that Anderson’s requested remedy—an earlier start date—belongs under Rule 35(a) (14-day window) or a timely direct appeal (also 14 days), not Rule 36. His six-month-late Rule 36 motion thus fails.

4. Harmless Misunderstanding — Even if the judge misunderstood the BOP’s statutory limits, Rule 36 cannot fix judicial error.

C. Impact on Future Jurisprudence

• Sharper Demarcation of Rule 36. The decision cautions litigants that “clerical” means utterly mechanical; any attempt to shorten or backdate a sentence is outside Rule 36.
• Defense Strategy Shift. Counsel confronting protracted pre-sentencing custody must lodge a Rule 35(a) motion or preserve objections for direct appeal. Failure to act within 14 days likely forfeits relief.
• Sentencing Hearing Precision. Lawyers must articulate requests under U.S.S.G. §5G1.3(d) with explicit language; generic pleas for “credit” sow confusion and squander appellate opportunities.
• Reinforced BOP Autonomy. Courts cannot compel the BOP to ignore § 3585(b). Recommendations are non-binding; the opinion makes that limitation unmistakable.

Complex Concepts Simplified

• Rule 36 vs. Rule 35(a) — • Rule 36: Fixes clerical slips (e.g., transposed numbers, omitted “not”).
  • Rule 35(a): Allows correction of clear sentencing errors (arithmetical, technical) within 14 days.
• Clerical Error — A mistake a “clerk” might make when typing the judgment (wrong docket number, math typo), not a strategic or legal mis-calculation by the judge.
• Writ of Habeas Corpus ad prosequendum — An order directing state officials to produce a prisoner in federal court for prosecution, after which the prisoner is usually returned to state custody.
• ACCA & Wooden — The Armed Career Criminal Act enhances § 922(g) sentences if a defendant has three prior violent/drug felonies committed on “different occasions.” Wooden narrowed that phrase, reducing Anderson’s exposure from 180 to 110 months.
• BOP Credit Under § 3585(b) — The BOP can credit pre-sentence detention if the time 1) occurred after the offense, and 2) has not been credited against another sentence. Double-credit is forbidden.

Conclusion

United States v. Anderson delivers a vital, if unpublished, clarification: Rule 36 is a scalpel for typographical mis-recitations, not a lever to move the commencement date of a federal sentence or to override BOP credit rules. Defendants who wish to argue that their federal term should effectively start during prior state confinement must employ Rule 35(a) or a direct appeal, and they must do so swiftly. The opinion further solidifies the Sixth Circuit’s insistence that practitioners use precise terminology— “partial concurrency under §5G1.3(d)”—rather than ambiguous pleas for “credit.” In the broader sentencing landscape, the case sharpens procedural boundaries and reinforces the division of labor between sentencing courts and the BOP, thereby promoting finality and discouraging piecemeal post-judgment litigation.