Opinion
Criminal No. 4:00CR40009-002.
May 8, 2009
ORDER
Before the Court is a Motion to Modify Sentence filed on behalf of the Defendant Brandon Stewart. (Doc. No. 158). In the motion, Defendant asks the Court to modify his federal sentence to run concurrently with the state sentence he is presently serving in the Arkansas Department of Corrections.
Defendant Brandon Stewart was indicted on June 28, 2000, for distributing cocaine base within 1000 feet of a school in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 860. On October 18, 2000, he entered a plea of guilty to the charge. On January 24, 2001, Defendant was sentenced to a term of ninety-two (92) months imprisonment in the Bureau of Prisons to be followed by six (6) years of supervised release. One of the conditions of Defendant's supervised release was that he would refrain from any unlawful use of a controlled substance. On August 17, 2006, Defendant was released from federal custody and began serving his term of supervised release.
On December 14, 2006, the Defendant tested positive for the use of marijuana. On January 4, March 13, April 29, June 3, and July 23, 2007, Defendant again tested positive for marijuana use. On August 14, 2007, as a result of Defendant's ongoing use of illegal drugs, the United States Probation Office petitioned the Court to revoke Defendant's term of supervised release. On August 31, 2007, the Court held a hearing on the requested revocation. Counsel was appointed to represent the Defendant at the Revocation Hearing. At the hearing, the Defendant admitted to the allegations contained in the petition to revoke. Thereafter, Defendant's supervised release was revoked and, on September 6, 2007, he was sentenced to twelve (12) months and one (1) day imprisonment in the BOP. Defendant was ordered to selfsurrender to the BOP on October 10, 2007, to begin serving his revocation sentence.
On September 12, 2007, prior to his report date, Defendant was arrested by the State of Arkansas on drug possession charges. He is currently serving a fifteen (15) year sentence in the Arkansas Department of Corrections on these state charges. When the Defendant did not report to the BOP as ordered, the United States Marshal Service filed a federal detainer with the State requesting that after the Defendant serves his state sentence he is detained and delivered to the BOP to serve his federal sentence. Defendant is now before the Court requesting that his federal sentence be allowed to run concurrent with the fifteen (15) year state sentence he is now serving.
District courts have broad discretion to determine whether a sentence will run consecutively or concurrently with a yet-to-be imposed state sentence. United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001). However, their power to revise such a sentence after it is imposed is much more limited. United States v. Gurski, No. 08-1453, 2009 WL 777964, *1 (8th Cir. March 26, 2009) (unpublished per curiam) (citing Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007)). Under 18 U.S.C. § 3582(c), a court may not modify a term of imprisonment once it is imposed except on motion of the Director of the BOP, under limited circumstance that are not applicable here, or under Rule 35 of the Federal Rules of Criminal Procedure. Rule 35(a) provides that a court may correct an arithmetical, technical, or other clear error in a sentence within 7 days of the announcement of that sentence. However, once that seven day period ends, a court lacks jurisdiction to correct even a legally erroneous sentence. United States v. Austin, 217 F.3d 595, 597 (8th Cir. 2000). Rule 35(b) provides that a court may reduce a sentence only on motion of the government based upon substantial assistance provided by the Defendant after his sentence. Neither provision of Rule 35 applies here. Accordingly, the Court does not have the authority to modify Defendant's federal sentence in this case.
In such circumstances, a defendant must serve his federal sentence after his state sentence ends, unless the BOP exercises its statutory authority under 18 U.S.C. § 3585(a) and designates the state prison as the defendant's place of federal confinement. See Fergans, 506 F.3d at 1104-05. The effect of such a nunc pro tunc designation is to make the defendant's federal sentence concurrent to his later-imposed state sentence. Therefore, Defendant's only recourse in this case is to ask the appropriate Bureau of Prisons Regional Director to designate the Arkansas Department of Corrections as his place of federal confinement.
Accordingly, for the foregoing reasons, the Court finds that Defendant Brandon Stewart's Motion to Modify Sentence should be and hereby is denied.
IT IS SO ORDERED.