Petition for Writ of Certiorari — Archie M. Whalen, Petitioner v. United States

Case: 24-6146

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NOT RECOMMENDED FOR PUBLICATION

Nos. 24-6146/25-5164

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

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Plaintiff-Appellee,

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FILED

Jul 15, 2025

KELLY L. STEPHENS, Clerk

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v.

ARCHIE M. WHALEN,

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

KENTUCKY

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Defendant-Appellant.

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ORDER

Before: SILER, KETHLEDGE, and WHITE, Circuit Judges.

In No. 24-6146, pro se federal prisoner Archie M. Whalen appeals the district court’s order

denying his discovery motion. The government moves to dismiss this appeal for lack of appellate

jurisdiction. Whalen moves for discovery in this case. In No. 25-5164, Whalen appeals the district

court’s order dismissing his motion to correct his presentence report. He also moves to supplement

the record. These cases have been assigned to a panel of the court that, upon examination,

unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a). For the following

reasons, we deny the government’s motion to dismiss Whalen’s appeal in No. 24-6146, vacate the

district court’s order in No. 24-6146, and affirm the district court order in No. 25-5164.

In 2012, a federal jury convicted Whalen of transporting a minor girl across state lines with

the intent to engage in sexual activity, in violation of 18 U.S.C. § 2423(a). The district court

sentenced Whalen to 360 months in prison, and we affirmed. See United States v. Whalen, 578

F. App’x 533 (6th Cir. 2014). In 2018, the district court denied Whalen postconviction relief from

his conviction and sentence under 28 U.S.C. § 2255, and we affirmed. See Whalen v. United

States, No. 18-5827 (6th Cir. Feb. 20, 2020). We placed Whalen on fifing restrictions because he

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persists in submitting frivolous applications for permission to file second or successive § 2255

motions. See In re Whalen, No. 24-5497 (6th Cir. Oct. 1, 2024).

Whalen has also bombarded the district court with frivolous postconviction motions,

including for discovery from the government, his trial attorney, and third parties. We recently held

that, in the absence of a pending § 2255 motion or a statute or rule authorizing discovery, the

district court lacked subject-matter jurisdiction to consider Whalen’s discovery motion. See

United States v. Whalen, No. 23-6126, slip op. at 3-4 (6th Cir. Dec. 4, 2024). Accordingly, we

vacated the district court’s order denying Whalen’s discovery motion and remanded the case to

the district court with instructions to dismiss the motion for lack of jurisdiction. See id. at 4.

In No. 24-6146, Whalen filed another motion seeking discovery from the government.

Because Whalen’s appeal in No. 23-6126 remained pending at that time, the district court

considered and denied the motion. In No. 25-5164, Whalen filed a motion to correct alleged

factual errors in his presentence report. The district court dismissed that motion.

The government moves to dismiss Whalen’s appeal in No. 24-6146. The government

argues that we lack appellate jurisdiction because the district court lacked jurisdiction to consider

Whalen’s discovery motion and because the denial of a discovery motion is not a final appealable

order. But we have jurisdiction to determine whether the district court had subject-matter

jurisdiction over Whalen’s discovery motion. See Siding & Insulation Co. v. Acuity Mut. Ins., 754

F.3d 367, 369 (6th Cir. 2014) (“If the district court lacks original jurisdiction, our appellate

jurisdiction extends no further than ‘correcting the error of the lower court in entertaining the

suit.’” (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998))). We therefore

deny the government’s motion to dismiss. And as before, the district court lacked jurisdiction to

consider Whalen’s discovery motion because he had no matters pending that authorized him to

take discovery. See Whalen, No. 23-6126, slip op. at 3-4. Accordingly, we vacate the district

court’s order in this case.

But we affirm the district court’s order in No. 25-5164 because it correctly recognized that

it lacked jurisdiction to correct Whalen’s presentence report. See Whalen, No. 23-6126, slip op.

at 3 (“Once a court sentences a criminal defendant, it generally has jurisdiction to continue hearing

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related issues only when authorized by statute or rule.” (quoting United States v. May, 500

F. App’x 458, 460 (6th Cir. 2012) (citing Carlisle v. United States, 517 U.S. 416 (1996))). Fed.

R. Crim. P. 36 allows a court to “at any time correct a clerical error in a judgment, order, or other

part of the record, or correct an error in the record arising from oversight or omission.” And the

Fifth Circuit has held that “the PSR is a ‘part of the record’ within the meaning of Rule 36.” United

States v. Mackay, 757 F.3d 195, 200 (5th Cir. 2014).

In his motion to correct the presentence report, Whalen asserted that he did not send Yahoo

messages that the presentence report attributed to him. He explained that he did not yet own his

cell phone on the day those messages were sent. Caselaw from several circuits indicates that this

factual dispute is outside the realm of the “clerical error[s]” that Rule 36 allows courts to correct.

See United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995) (“Rule 36 covers only minor,

uncontroversial errors.”); United States v. Guevremont, 829 F.2d 423, 426 (3d Cir. 1987) (“[A]

clerical error ‘must not be one of judgment or even of misidentification, but merely of recitation,

of the sort that a clerk or amanuensis might commit, mechanical in nature.’” (quoting Dura-Wood

Treating Co. v. Century Forest Indus., 694 F.2d 112,114 (5th Cir. 1982)); United States v. Jones,

608 F.2d 386, 389 (9th Cir. 1979) (“Rule 36 was intended to allow correction of clerical errors,

not to allow reassessment of the merits of an earlier decision after the time for reconsideration or

appeal ha[s] elapsed.”). Therefore, the district court did not have jurisdiction to correct the

presentence report.

In summary, in No. 24-6146, we DENY the government’s motion to dismiss, VACATE

the district court’s order denying Whalen’s discovery motion, and REMAND the case to the

district court with instructions to dismiss the motion for lack of jurisdiction. In No. 25-5164, we

AFFIRM the district court’s order. We DENY all other pending motions.

ENTERED BY ORDER OF THE COURT

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