United States v. Richard Parker

MEMORANDUM

Richard Wayne Parker appeals the amended judgment against him, which was corrected in 2010 after he moved under Fed.R.Crim.P. 36 to correct a clerical error in the amount of the fine imposed. Although his Rule 36 motion was granted, Parker now seeks to challenge the validity of his sentence of imprisonment under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), which was decided after he was sentenced but before the conclusion of his direct appeal.

Regardless of whether the district court acted properly by amending, under Rule 36, Parker’s judgment of conviction to reflect the reduction of his fine, it is apparent that the ministerial amendment of the judgment—reflecting a decision made years before—does not entitle Parker to file a new challenge to his sentence of imprisonment. Parker has had two previous opportunities to raise an Apprendi challenge to his sentence: on direct appeal, where he failed to make this argument, and in a motion under 28 U.S.C. § 2255 , where he argued that his original counsel had been constitutionally defective for failing to raise Apprendi on appeal. On appeal from the denial of § 2255 relief, this court…