United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
8, 2014, the Court sentenced defendant to 120 months in
prison. This matter is before the Court on defendant's
letter (Doc. #2012) filed February 17, 2017, which the Court
construes as a motion to correct the presentence
investigation report under Rule 36 of the Federal Rules of
Criminal Procedure. For reasons stated below, the Court
overrules defendant's motion.
argues that the Bureau of Prisons (“BOP”) refuses
to grant him a 12-month reduction of his sentence under the
Residential Drug Abuse Treatment Program because of erroneous
information in his Presentence Investigation Report
(“PSIR”) (Doc. #1488). In particular, defendant
argues that the BOP has denied him a reduced sentence based
on the firearm enhancement in the PSIR. In a sentencing
memorandum, defendant objected to the firearm enhancement. At
sentencing, the Court overruled his objection as moot in
light of the statutory minimum sentence.
does not cite any statutory authority for the Court to amend
the PSIR at this time. Under Rule 36, at any time, the Court
may correct a “clerical error” in the record or
an “error in the record arising from oversight or
omission.” Fed. R. Crim. P. 36. The Court did not rule
on defendant's objection to the firearm enhancement
because it did not impact his sentence. Rule 36 does not
permit the Court to make a substantive ruling on
defendant's objection at this time. See United States
v. Long, 419 F. App'x 845, 848 (10th Cir. 2011)
(Rule 36 cannot be used to challenge drug quantity in PSR);
United States v. Wilkes, 376 F. App'x 295, 296
(4th Cir. 2010) (Rule 36 motions apply to clerical errors
only; not proper vehicle to challenge substance of
presentence report); United States v. Simon, 36 F.
App'x 415, 416 (10th Cir. 2002) (same). Under Rule 32(f),
Fed. R. Crim. P., defendant had 14 days to raise objections
to the PSIR. Defendant cannot use Rule 36 as a back door to
evade Rule 32 or any obstacles in filing a habeas petition.
See United States v. Johnson, 571 F.3d 716, 718 (7th
Cir. 2009) (Rule 36 cannot be used as alternative to attack
sentence based on non-clerical error in PSR); see also
Long, 419 F. App'x at 848 (defendant cannot escape
strictures of Rule 32 by relying on Rule 36);
Wilkes, 376 F. App'x at 296 (substantive
challenge to PSR must be made within deadline of Rule 32).
For these reasons, the Court overrules defendant's Rule
does not attack his conviction or sentence in this case, but
merely the BOP's execution of his sentence. See
Richardson v. Joslin, 501 F.3d 415, 419-20 (5th Cir.
2007) (ineligibility for Residential Drug Abuse Treatment
Program does not extend original sentence or qualitatively
alter sentence). A challenge to the execution of a sentence
generally must be raised under 28 U.S.C. § 2241. See
Johnson v. United States, 46 F.3d 1135, 1995 WL 4311, at
*1 (8th Cir. 1995) (because inclusion of alleged erroneous
information in PSR did not impact sentence and only affects
execution of sentence or conditions of confinement, challenge
to PSR should be raised in Section 2241 petition); United
States v. Ramis, No. 13 CR. 600-2 (ER), 2015 WL 7871035,
at *3 (S.D.N.Y. Dec. 3, 2015) (Section 2241 is appropriate
vehicle to challenge BOP decision regarding early release
eligibility under RDAP); Wilson v. Baird, No.
3:11-CV-1304 (MRK), 2012 WL 2154209, at *3 (D. Conn. June 13,
2012) (same); see also Davis v. Roberts, 425 F.3d
830, 833 (10th Cir. 2005) (challenge to execution of sentence
should be brought under Section 2241); Graves v. United
States, 124 F.3d 204 (Table), 1997 WL 547924, at *1 (7th
Cir. Aug. 29, 1997) (challenge to BOP decision not to place
defendant in boot camp must be raised in Section 2241
THEREFORE ORDERED that defendant's letter (Doc. #2012)
filed February 17, 2017, which the Court construes as a
motion to correct the presentence investigation report under
Rule 36 of the Federal Rules of Criminal Procedure, is
 Defendant apparently is currently
enrolled in the Residential Drug Abuse Treatment Program, but
he alleges that BOP stated that he will not receive a
sentence reduction after he completes the program.
See Doc. #2012 at 1.
 The PSIR found that “[c]redible
evidence was presented at trial that the defendant possessed
a firearm during the course of the conspiracy.” PSIR
(Doc. #1488), ¶ 92.
 Rule 35 also does not authorize a
substantive modification of defendant's sentence or the
PSIR because (1) the Court must make any such modification
within 14 days of sentencing and (2) defendant has not shown
an error in his sentence. Fed. R. Crim. P. 35(a).
 A petition brought under Section 2241
must be filed in the district where defendant is confined.
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). Defendant is confined in Forrest City, Arkansas. The
Court advises defendant that in order to file a petition
under Section 2241, he must exhaust administrative remedies
with the BOP if he has not already done so. See United