United States District Court, D. Alaska
ORDER AND OPINION [Re: Motion at Doc. 55]
JOHN W. SEDWICK, District Judge.
At docket 55, defendant Roy Dyson moved to correct paragraph 52 of his presentence report. At docket 58, the United States filed a notice stating that it takes no position on the request to correct paragraph 52.
In its entirety, paragraph 52 reads as follows:
52. Dyson reported that he married Angela Lytle in 1996 or 1997, and together they have one child Royona Dyson, age 4. Dyson advised that his daughter resides with her mother in Tucson, Arizona.*
* On August 28, 2003, the defendant reported being the father of six children.
It turns out that the available evidence does not support the proposition that Dyson and Ms. Lytle actually were married. Because there is no record of the marriage, Dyson cannot obtain a divorce certificate-there being no marriage to terminate. The problem for Dyson is that because of the statement in paragraph 52 and his inability to obtain a divorce certificate, the Bureau of Prisons will not permit Dyson to marry his current fiance, Ms. Lashan Battee.
Dyson moves for a correction of a typographical error in paragraph 52 pursuant to Fed. R. Crim. P. 36. However, there is no typographical error in the paragraph, for it accurately reports what Dyson told the author of the report. Nevertheless, the court concludes that Dyson is entitled to relief. Rule 36 also allows the court to "correct an error in the record arising from oversight or omission." The information available shows that it was an oversight to ignore the available contrary information, omit that other information, and then treat Dyson's statement as if it established that he was married to Ms. Lytle. This is so because at the time the paragraph was written, it had already been noted at Dyson's original court appearance on February 3, 2003, that Dyson lived with his fiance and seven kids, and then on August 27, 2003, Ms. Lytle herself wrote a letter to the court in which she explained that she was at that time Dyson's fiance and hoped to marry him in the future. Dyson now says that he was mistaken when he reported the marriage to Ms. Lytle. The court suspects the real reason Dyson made that statement was to facilitate visits with Ms. Lytle while he was incarcerated-Dyson had several previous convictions and doubtless knew the potential significance of giving a desired visitor the status of a spouse.
The correction Dyson seeks will not affect the length of his sentence nor call into question any aspect of his conviction. All it will do is afford him a chance to marry Ms. Battee. The wisdom of choosing to marry an incarcerated felon who is unlikely to be released any time soon is a matter for Ms. Battee, not this court, to determine.
For the reasons above, the motion at docket 55 is GRANTED as follows: The United States Probation and Pretrial Services for the District of Alaska is directed to revise paragraph 52 of Mr. Dyson's pre-sentence report to take into account the omitted information, and then forward the revised report to the Bureau of Prisons. Revised paragraph 52 should read substantially as follows:
At the pre-sentence interview on July 7, 2003, Dyson reported that he married Angela Lytle in 1996 or 1997, and together they have one child, Royona Dyson, age 4. However, at the initial court appearance on February 3, 2003, it was indicated that Dyson "lives w/fiance 7 kids, " and on August 27, 2003, Angela Lytle submitted a handwritten letter to the Court, stating "My name is Angela Dyson (Lytle) and I'm Roy's fiance for about four (4) years now, " and "If its God's will, I know he'll come home to us soon and then we'll ...