Opinion
CRIMINAL ACTION NO. 5:06-CR-2-TBR
11-14-2019
UNITED STATES OF AMERICA, PLAINTIFF v. PATRICK GENE HOPPER, DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Patrick Gene Hopper's pro se Motion to Run Sentences Concurrent. [DN 39]. The Government responded. [DN 41]. Defendant did not reply and the deadline to do so has passed. This matter is ripe for adjudication. For the reasons stated herein: Defendant's Motion to Run Sentences Concurrent, [DN 39], is DENIED.
BACKGROUND
On January 11, 2006, Defendant was indicted on three counts of bank robbery, one count relating to the use of a firearm during a robbery, and one count of possessing a firearm while subject to a domestic violence order. [DN 41 at 113]. On January 19, 2006, Defendant was indicted in state court for burglary, rape, and theft. Id. On March 10, 2006, he was indicted again in state court for burglary and theft. Id.
On January 12, 2007, Defendant pled guilty to the federal charges and was sentenced to 117 months imprisonment. Id. at 114. Pursuant to his Plea Agreement, Defendant waived his right to "contest or collaterally attack his conviction and/or the resulting sentence pursuant to 28 U.S.C. § 2255 for ineffective assistance of counsel, or otherwise." [DN 28]. Defendant is currently serving a sentence relating to his state charges, which have a maximum expiration of sentence date of May 29, 2043. [DN 41 at 114]. He filed the instant motion requesting the Court run his federal sentence concurrently with the state sentence. [DN 39].
LEGAL STANDARD AND DISCUSSION
Defendant asserts that this Court may impose a concurrent sentence under 18 U.S.C. § 3584(a). [DN 39 at 106]. In response, the Government contends that the Court lacks jurisdiction to consider Defendant's request. [DN 41 at 114]. Moreover, the Government argues that if the Court considers Defendant's motion pursuant to 28 U.S.C. § 2255, it should be denied given that Defendant waived his right to collaterally attack his sentence and the motion falls outside the one-year statute of limitations listed in 28 U.S.C. § 2255(f). Id. at 115.
I. 18 U.S.C. § 3584
Defendant requests the Court run his federal sentence concurrently with his state sentence pursuant to 18 U.S.C. § 3584. Defendant's reliance on this statute, however, is misplaced. Section 3584 is applicable at the time a court first imposes a sentence, not when a defendant is seeking correction of his sentence. Section 3584 "does not provide this court with any authority to substantively alter a sentence . . . ." Wilson v. United States, 969 F.Supp. 1054, 1057 (E.D. Mich. 1997). Instead, Defendant must rely on Federal Rule of Criminal Procedure 35 or 18 U.S.C. § 3582(c) to amend his sentence.
Neither Rule 35 nor 18 U.S.C. § 3582(c) are applicable to Defendant's case. First, Rule 35 only allows the Court to correct or reduce a sentence when there is a clear error or the government makes a motion to have the sentence reduced as a result of a defendant's substantial assistance. Fed. R. Crim. P. 35(a),(b). Section 3582(c) states that a court may not modify a term of imprisonment except in cases where the Director of the Bureau of Prisons files a motion to reduce a defendant's sentence, in cases where Rule 35 is applicable, or in cases where the sentencing range has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c). Defendant's request for concurrent sentencing is not an available remedy under these rules and statutes, and therefore, the Court has no means by which to amend Defendant's sentence.
II. 28 U.S.C. § 2255
Although not raised by Defendant, the Government notes that if the Court were to construe the instant motion as one for relief pursuant to 28 U.S.C. § 2255, it should still be denied. Pursuant to § 2255, a prisoner has a right to collaterally attack his sentence for a variety of reasons, including if the sentence imposed is in violation of the laws of the United States or in excess of the maximum sentence authorized by law. 28 U.S.C. § 2255(a). However, "[a] defendant may waive any right in a plea agreement, including a constitutional right, if the waiver is made knowingly and voluntarily." United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001). "The Sixth Circuit has held, in particular, that a movant's waiver of his right to collaterally attack his sentence is generally enforceable." Foreman v. United States, No. 1:08-CV-1115, 2010 WL 2854274, at *2 (W.D. Mich. July 19, 2010) (citing In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007)). In this case, Defendant made a knowing and voluntary waiver of his right "to contest or collaterally attack his conviction and/or the resulting sentence pursuant to 28 U.S.C. § 2255 for ineffective assistance of counsel or otherwise." [DN 28]. Therefore, if the Court were to construe his motion as a collateral attack on his sentence pursuant to § 2255, it must be denied.
CONCLUSION
For the reasons stated herein: IT IS HEREBY ORDERED: Defendant's Motion to Run Sentences Concurrent, [DN 39], is DENIED.
IT IS SO ORDERED.
/s/
Thomas B. Russell, Senior Judge
United States District Court
November 14, 2019 CC: Attorneys of Record Patrick Hopper, #212387
Little Sandy Correctional Complex
505 Prison Connector Road
Sandy Hook, KY 41171