Memorandum Opinion & Order — No. 1:21-cr-00805 (Dkt. 93, N.D. Ohio)

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A Memorandum Opinion & Order, Doc #: 93, filed July 13, 2023 in United States v. Phillip J. Augustin, Case No. 1:21-CR-00805 (Case: 1:21-cr-00805-PAB), in the U.S. District Court for the Northern District of Ohio, signed by Pamela A. Barker, U.S. District Judge. The defendant filed a Motion Requesting Correction of "Clerical Errors" in the Record and Presentence Report under Rule 36 (Doc. No. 89), which the court reads as arguing that the probation officer wrongly used a $25,342,563 intended loss amount to apply a 20 level increase. The court finds no clerical error in the presentence investigation report to correct and no basis for a new sentencing hearing, and denies the motion.

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  Case: 1:21-cr-00805-PAB Doc #: 93 Filed: 07/13/23 1 of 4. PageID #: 919




                      IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF OHIO


 UNITED STATES OF AMERICA,                       Case No. 1:21-CR-00805

               Plaintiff,

               -vs-
                                                 JUDGE PAMELA A. BARKER

 PHILLIP J. AUGUSTIN,

               Defendant.                        MEMORANDUM OPINION & ORDER


       Currently before the Court is Defendant’s Motion Requesting Correction of “Clerical Errors”

in the Record and Presentence Report Pursuant to Rule 36 of the Federal Rules of Criminal Procedure

filed on June 26, 2023 (“Defendant’s Motion”). (Doc. No. 89.) On July 5, 2023, the United States

filed the Government’s Response in Opposition to Defendant’s Motion (“the Government’s

Response”). (Doc. No. 91.) On July 10, 2023, Defendant filed a Reply Motion to the Government’s

Motion (“Defendant’s Reply”). (Doc. No. 92.) Thus, Defendant’s Motion is ripe for a decision.

       In Defendant’s Motion, Defendant argues that there are “clerical errors” in the Presentence

Investigation Report and, pursuant to Rule 36 of the Federal Rules of Criminal Procedure, asks that

the Court correct them. Having read Defendant’s Motion, to include Defendant’s citation to, and

reliance upon the United States Supreme Court’s decision in Kisor v. Wilkie, 139 S.Ct. 2400 (2019),

the Sixth Circuit Court of Appeals decisions in United States v. Riccardi, 989 F.3d 476 (6th Cir.

2021) and United States v. Havis, 927 F.3d 382 (6th Cir. 2019), and the Third Circuit Court of

Appeals’ decision in United States v. Banks, 55 F. 4th 246 (3d Cir. 2022), the Court interprets
    Case: 1:21-cr-00805-PAB Doc #: 93 Filed: 07/13/23 2 of 4. PageID #: 920




Defendant’s Motion as arguing that the probation officer was incorrect in using the calculated

$25,342,563 “intended loss” amount to apply a 20 level increase in his total offense level. 1

         In the Government’s Response, the Government asserts that through the filing of Defendant’s

Motion, Defendant, while “purportedly seeking to amend/correct a clerical error in the presentence

report,” is “actually asking for resentencing and attacking the guidelines calculation to which he had

stipulated.” (Doc. No. 91, PageID # 900.)

         In Defendant’s Reply, Defendant disagrees with the Government’s characterization of the

relief he seeks by filing his Motion, and in attempting to clarify the relief he seeks, asserts the

following:

         Augustin’s motion is clear and unequivocally does not complain, argue, or challenge
         the calculation of his sentence and neither does he argue about the execution of his
         sentence or that his sentence should be lowered from 78 months. Augustin simply
         argues that his presentence report contain clerical errors and is defective, thus he
         request the Court, “in an abundance of caution,” to correct errors and mistakes in his
         presentence report “which are not in compliance and accordance with the law of the
         Sixth Circuit as instructed by United States v. Havis, 927 F.3d 832 (6th Cir. 2019) (en
         banc) and United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021).” *** United States
         v. Banks, 55 F.4th 246 (3rd Cir. 2022)(Commentary binds courts only “if the guideline
         which the commentary interprets will bear the construction”); *** Therefore, if the
         presentence report is not in compliance and accordance with circuit law, the
         contents thereof is erroneous and defective and must be corrected, in that, forcing
         Augustin to spend years longer in prison ‘solely due to data entry errors’ made by
         a probation officer for which he had no responsibility, serves no legal, judicial,
         or public interest, ‘is manifestly unjust.’”

(Doc. No. 92, PageID #s 913-14.) (Spelling, punctuation, and grammar as in original.) (Emphasis

added by bold print and/or italics.)




1
 In the written plea agreement, Defendant stipulated to the application of this specific offense characteristic pursuant to
USSG § 2B1.1(b)(1)(K), with the concomitant 20 level increase in Defendant’s offense level. (Doc. No. 58, PageID #
409.)
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  Case: 1:21-cr-00805-PAB Doc #: 93 Filed: 07/13/23 3 of 4. PageID #: 921




       Thus, within the same paragraph in Defendant’s Reply, Defendant initially asserts that he is

not seeking to have his sentence lowered, but later asserts that a clerical error should be corrected so

that he is not forced “to spend longer years in prison….” However, regardless of whether the relief

Defendant seeks is just correction of a clerical error pursuant to Rule 36, or a resentencing based upon

an incorrect Guidelines calculation, he is entitled to neither, based upon the Sixth Circuit Court of

Appeals’ decision in United States v. You, --- F. 4th ---, 2023 WL 4446497 (6th Cir. July 11, 2023).

       In You, the Court explained that “[f]or theft and fraud offenses, the Guidelines instruct courts

to increase a defendant’s Guidelines offense level ‘in incremental amounts based on the ‘loss’ from

the offense’,” quoting U.S.S.G. § 2B1.1(b)(1); and noted that that section does not define “loss”, but

that “[t]he Sentencing Commission’s Guidelines commentary [specifically U.S.S. G. § 2B1.1 cmt.

N.3(A)] explains that, generally, loss is the ‘greater of actual loss or intended loss.’” Id. at * 12. The

Court also explained that “[t]he commentary defines ‘actual loss’ as the ‘reasonably foreseeable

pecuniary harm that resulted from the offense,’ id. § 2B1.1 cmt. N.3(A)(i) and ‘intended loss’ as ‘the

pecuniary harm that the defendant purposely sought to inflict,’ id. § 2B1.1 cmt. N.3(A)(ii).’” Id.

       After applying the framework in Kisor to determine whether to defer to the Guidelines

commentary, the Court concluded that it would defer to the Sentencing Commission’s interpretation

of “loss”, found as unpersuasive the Third Circuit case of United States v. Banks, and concluded that

the district court had properly considered the intended loss in calculating the defendant’s Guidelines

range. Id. at * 12-13. Accordingly, the Court finds that there is no clerical error in the presentence

investigation report that needs to be corrected, and certainly no basis upon which to conclude that

Defendant is entitled to a new sentencing hearing.

        Therefore, Defendant’s Motion is DENIED.


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  Case: 1:21-cr-00805-PAB Doc #: 93 Filed: 07/13/23 4 of 4. PageID #: 922




       IT IS SO ORDERED.


                                              s/Pamela A. Barker
                                             PAMELA A. BARKER
Date: July 13, 2023                          U. S. DISTRICT JUDGE




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