Opinion
CR-19-02623-001-TUC-CKJ (MSA)
10-21-2022
United States of America, Plaintiff, v. Rafaela Rosella Ann Antonio, Defendant.
ORDER
HONORABLE CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE
On January 20, 2020, this Court sentenced Defendant to 33 months in custody for transporting illegal aliens for profit. She was released from the physical custody of BOP and serving her sentence at Dismas Charities, a residential reentry program for inmates in Tucson. Within approximately six weeks of her release date, she cut off her ankle bracelet and walked away from the facility. She was eventually arrested and charged with escape. She was sentenced by Judge Hinderaker for the new offense of escape in CR 22-522 TUC JCH to time served. This amounted to approximately six months of pretrial/presentence custody from February 23, 2022 to August 23, 2022, with the sentence in CR 22-522 TUC JCH to run consecutively with the remaining time previously imposed in CR 19-2623 TUC CKJ.
On September 28, 2022, the Defendant filed a Motion to Reduce Sentence Nunc Pro Tunc, asking this Court to reduce the 33-month sentence imposed in 2020 to 27 months. According to the Defendant, the reduction is necessary to accomplish what the parties intended when they appeared before Judge Hinderaker and asked for the time served sentence for the escape. They anticipated a release date of September 24, 2022, based on good time credits accrued by the Defendant while she was in custody in CR 19-2623 TUC CKJ. Unfortunately, the Bureau of Prisons (BOP) revoked her good time credits due to the escape, and she now has an anticipated release date of March 5, 2023. The Government does not object to the Court reducing the sentence. It agrees that both parties and the Court anticipated that the defendant would be released from custody in late September 2022.
Under 18 U.S.C. § 3582(c), a Court may not modify a term of imprisonment once it has been imposed except in the rarest of circumstances when extraordinary or compelling reasons exist, or pursuant to Rule 35 or 18 U.S.C. § 3742. Neither the Defendant nor the Government presents any legal authority reflecting this Court has the power to make the sentence reduction requested by the Defendant. The Court has found none. Under Fed. R. Crim. P. 35, “[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed. R.Cr. P. 35(a). The 14 days is jurisdictional. United States v. McGaughy, 670 F.3d 1149, 1155-59 (10th Cir. 2012). Not even Judge Hinderaker's sentence falls within the 14-day limit and the several-years old sentence imposed by this Court in CR 19-2623 TUC CKJ is clearly beyond 14 days. The Defendant does not explain how this Court's sentence was clear error or a mistake. The alleged error in assuming Defendant's release date was in September, pursuant to good time credits, occurred in relation to the 2022 sentencing for the escape offense. Subsection b in Rule 35 allows reductions in sentencings for substantial assistance and clearly does not apply.
Section 3742 pertains to appellate review of final sentences.
Finally, the Court notes that “[t]he federal good time statute, 18 U.S.C. § 3624, makes it clear that it is the Bureau of Prisons, not the court, that determines whether a federal prisoner should receive good time credit.” United States v. Evans, 1 F.3d 654, 654 (7th Cir.1993) (citing Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992)); Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9th Cir. 2001) (explaining by analogy that the courts in the Ninth Circuit have found it to be the BOP's responsibility to credit time served) (citing United States v. Martinez, 837 F.2d 861, 865-66 (9th Cir.1988)). The Defendant is asking this Court to reduce her sentence to get around the BOP's determination that she should not receive good time credit because she escaped from custody, without even bothering to challenge the merits of that determination. See also Pepper v. United States, 562 U.S. 476, 501 n. 14 (2011) (“An award of good time credits by the Bureau of Prisons (BOP) does not affect the length of a court-imposed sentence; rather, it is an administrative reward ... Such credits may be revoked at any time before the date of a prisoner's release.”); Cardona v. Bledsoe, 681 F.3d 533, 537 n. 8 (3d Cir.2012) (“Indeed, the Supreme Court's recent opinion in [Pepper] calls into question whether an inmate can even bring a habeas claim for an actual loss of good time credits.” (emphasis in original)).
This Court finds that it lacks the authority to make the requested sentence reduction. If it were to reach the merits of the request, the Court would deny it.
Accordingly,
IT IS ORDERED that the Motion to Reduce Sentence Nunc Pro Tunc (Doc. 32) is DENIED.