Opinion
Case No. 3:12-cr-36
07-24-2013
UNITED STATES OF AMERICA, Plaintiff, v. BRYAN MILAN, Defendant.
Judge Timothy S. Black
DECISION AND ENTRY DENYING DEFENDANT'S RULE 36 MOTION TO
CORRECT A CLERICAL ERROR IN JUDGMENT (Doc. 18)
This case is before the Court on Defendant's Rule 36 Motion. (Doc. 18). Defendant requests that the Court correct a purported clerical error regarding his sentence that he maintains is contained somewhere in the Court's judgment entry. The United States did not file a response to Defendant's Motion and the time for doing so has expired. Accordingly, Defendant's Motion is ripe for decision by the Court.
On March 3, 2012, the United States charged Defendant in this case, by way of information, with: (1) a violation of 21 U.S.C. § 846; (2) a violation of 18 U.S.C. § 1952(a)(3)(A); and (3) a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In a separate state case, the Warren County, Ohio Court of Common Pleas sentenced Defendant on March 6, 2012, in case number 11CR27509, to concurrent jail terms of 180 days for criminal damaging and 90 days for obstructing official business.
Defendant was originally charged by way of a superseding indictment in this Court in case number 3:11-cr-146 along with then a co-defendant. That superseding indictment charged Defendant with two counts: (1) a violation of 21 U.S.C. § 846; and (2) a violation of 18 U.S.C. § 1952(a)(3)(A). The charges against Defendant in case number 3:11-cr-146 were subsequently dismissed on August 3, 2012 on motion of the Government.
In this federal case, on April 19, 2012, Defendant entered guilty pleas to all three counts in the information pursuant to a plea agreement entered into between himself and the United States pursuant to Fed. R. Crim. P. 11(c)(1)(C). (Docs. 3, 5). Under the plea agreement, the parties agreed, in part, that "the appropriate disposition of this case, is a sentence of seventy-two (72) months imprisonment and a $300 special assessment." (Doc. 3, PAGEID 9).
Defendant waived his right to be prosecuted by way of indictment. (Docs. 4, 5).
Criminal Rule 11(c)(1)(C) provides, in part, that a "plea agreement may specify that an attorney for the government will... agree that a specific sentence or sentencing range is the appropriate disposition of the case[.]"
On August 2, 2012, during the sentencing hearing in this case, the Court accepted the plea agreement and sentenced Defendant to a period of imprisonment "of 72 months, six years, as to Counts 1 and 3; 60 months, on Count 2, all counts running concurrent to themselves and the undischarged term of imprisonment in the state court case." (Doc. 19, PAGEID 127). The Court's judgment entry accurately reflects the Court's oral pronouncement of Defendant's sentence, stating that:
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 72 months in Counts 1 & 3 and 60 months in Count 2, each count concurrent and concurrent to undischarged term of imprisonment in Warren County, Ohio Common Pleas Court Case No.11CR27509.(Doc. 12, PAGEID 63). Defendant neither objected to the oral pronouncement of sentence during the sentencing hearing nor filed a direct appeal of the Court's judgment entry. (Doc. 19, PAGEID 127).
Defendant now contends that the Court's judgment entry must contain some clerical error because the Bureau of Prisons did not credit time he served on his state sentence, while also on a federal detainer, prior to commencement of his federal sentence on August 2, 2012. Defendant argues that the Court, by ordering his federal sentence to run concurrent to the undischarged term of imprisonment imposed by the state, intended that all of Defendant's state time served before imposition the federal sentence be credited toward his federal sentence. Defendant requests that the Court correct the judgment to reflect that he should receive credit for time served between March 6, 2012, i.e., the date his state sentence was imposed, and August 1, 2012, i.e., the day before commencement of his federal sentence.
Pursuant to 18 U.S.C. § 3585(a), "[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served." In this case, Defendant's term of imprisonment commenced on or about August 2, 2012, when this Court ordered Defendant "remanded to the custody of the marshal for presentation to the Federal Bureau of Prisons." (Doc. 19, PAGEID 128). Defendant's Motion represents that the Bureau of Prisons also determined that his federal sentence in this case commenced on August 2, 2012.
Rule 36 of the Federal Rules of Criminal Procedure provides that "the court may 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." As stated by the Sixth Circuit, "[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." United States v. Penson, 526 F.3d 331, 335 (6th Cir. 2008) (citations omitted). Further, "Rule 36 has been consistently interpreted as dealing only with clerical errors, not with mistakes or omissions by the court." Id. (citations omitted). In fact, "Rule 36 authorizes a court to correct only clerical errors in the transcription of judgments, not to effectuate its unexpressed intentions at the time of sentencing." United States v. Zabawa, 134 Fed. Appx. 60, 68 (6th Cir. 2005) (citations omitted).
Here, the Court finds that Defendant's Motion is not well-taken because Defendant's main complaint does not concern any clerical error in the judgment entry. The Court's pronouncement of sentence and the subsequent judgment appropriately and fully set forth the Court's intended sentence. Instead, Defendant's complaint focuses on and concerns the Bureau of Prison's calculation of jail time credit given to Defendant toward his federal sentence for time spent in detention before commencement of his federal sentence. "Only the Bureau of Prisons, and not the district court, is authorized to grant credit for time served under 18 U.S.C. § 3585(b)." United States v. Jefferson, 507 Fed. Appx. 509, 510 (6th Cir. 2012) (citing United States v. Crozier, 259 F.3d 503 (6th Cir. 2001)).
Pursuant to 18 U.S.C. § 3585(b):
A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—(Emphasis added). Here, 18 U.S.C. § 3585(b) appears to prohibit the Bureau of Prisons from crediting the Defendant with time credited toward his state sentence before the commencement of his federal sentence.
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
To be sure that this Court's oral pronouncement of sentence and the statement of that sentence on the judgment entry accurately reflect the Court's intended sentence, the Court will expound on the circumstances and guidelines presented here. The United States Sentencing Guidelines do expressly address a certain circumstance where a sentencing court may "adjust the sentence for any period of imprisonment already served on [an] undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons[.]" U.S.S.G. § 5G1.3(b). However, subsection (b) of § 5G1.3 does not apply to Defendant because his state sentence did not result from an offense deemed relevant conduct. Instead, subsection (c) of § 5G1.3 applies in this case, as noted in the Presentence Investigation Report.
Subsection (c) of § 5G1.3 states that "the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense." Here, the Court followed § 5G1.3(c) and imposed Defendant's federal sentence to run concurrently with Defendant's prior undischarged term of imprisonment. However, as noted in commentary to § 5G1.3, "[u]nlike subsection (b), subsection (c) does not authorize an adjustment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment." (Emphasis added).
Certainly, "[s]ection 5G1.3 is advisory, and thus its distinction between subsections (b) and (c) is informative in, but not binding on, the way a district court exercises its § 3584 discretion[,]" and courts ultimately retain the discretion to adjust federal sentences "to account for the time [a federal defendant has] served on his state" sentence. United States v. Campbell, 617 F.3d 958, 961-62 (7th Cir. 2010). Even so, this Court was presented with a binding plea agreement between the parties reached pursuant to Criminal Rule 11(c)(1)(C) which, when accepted by the Court, bound the Court to sentencing Defendant to a total of 72 months incarceration on his federal charges. See United States v. Perez, 464 Fed. Appx. 467, 468 (6th Cir. 2012) (stating that "[w]hen a district court accepts a Rule 11(c)(1)(C) plea agreement, 'it is bound by the bargain'") (citations omitted).
18 U.S.C. § 3584(a) states that "[i]f multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."
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Thus, the plea agreement reached between the parties, when accepted by the Court, bound the Court to sentence Defendant to 72 months imprisonment and left the Court no discretion to adjust Defendant's sentence to account for time already served on his state sentence. The sentence stated by the Court at sentencing and set forth in the judgment accurately sets forth this exact sentence. While the Court ordered Defendant's federal imprisonment run concurrent to his undischarged state sentence, the Court has no authority to credit time served and was left no discretion in the binding plea to adjust the sentence to account for time Defendant served on the state sentence prior to commencement of his federal sentence.
Accordingly, finding no clerical error in the Court's judgment, the Court DENIES Defendant's Rule 36 Motion.
IT IS SO ORDERED.
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Timothy S. Black
United States District Judge