Opinion
CASE NO. 5:02-CR-00255
06-03-2014
UNITED STATES OF AMERICA, Plaintiff v. TYRONE HORNE, Defendant.
OPINION & ORDER
[Resolving Docs. 1435 & 1437]:
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Defendant Tyrone Horne moves "to request a nunc pro tunc designation to clarify a sentence imposed by this Court." The government opposes the motion. For the following reasons, the Court DENIES Defendant Horne's motion.
Doc. 1435.
Doc. 1437.
On December 9, 2002, this Court sentenced Defendant Horne to 78 months incarceration followed by 3 years of supervised release for Horne's distribution of cocaine base.
Doc. 657.
While on federal probation, on February 17, 2009, Defendant Horne was convicted of trafficking in cocaine in state court, and on March 6, 2009, Horne was sentenced to four years of imprisonment for the violation of his supervised release.
State v. Horne, 2010-Ohio-350.
On April 14, 2009, Defendant Horne was sentenced to a period of 34 months for violation of supervised release as a result of his state law conviction. The Court was silent as to whether the sentence was to run concurrently with the state sentence.
Doc. 1165.
Id.
On February 26, 2014, Defendant Horne filed a motion to request a nunc pro tunc desigation to clarify a sentence imposed by this Court. Defendant Horne requests that the Court retroactively, or nunc pro tunc, order his federal and state sentences to run concurrently. In response, the government says that the Court does not have jurisdiction because Defendant Horne has completed his federal sentence and is now in state custody.
Doc. 1435.
Id.
Doc. 1437.
To the extent that Defendant Horne merely requests clarification on the Court's April 14, 2009 order, the Court finds the terms of imprisonment to run consecutively. When terms of imprisonment are imposed at different times they automatically run consecutively not concurrently unless the court specifically orders the terms to run concurrently. Thus, because the Court's order on April 14, 2009 was silent on to whether the state and federal sentences were to run consecutively or concurrently, they are presumed to run consecutively. Morever, the Court notes that it did in fact mean to have the terms of imprisonment run consecutively.
To the extent that Defendant Horne asks the Court to retroactively order the terms of imprisonment to run concurrently, the Court finds it does not have the authority to do so. A federal district court has no power to "modify a term of imprisonment once it has been imposed" in the absence of a few narrow exceptions. For example, the Bureau of Prisons can move the sentencing court to reconsider the defendant's sentence because of "extraordinary or compelling reasons"; a defendant of advanced age serving a lifetime sentence can qualify for alteration or reduction of his sentence; or a sentencing court can reconsider its sentence if the sentencing range for the offense is lowed by the Sentencing Commission. None of these exceptions apply to Defendant Horne's situation. Thus, the Court does not have authority to give the requested relief.
18 U.S.C. § 3582(c); see also United States v. Profitt, 3:06-CR-136-1, 2014 WL 408299 (S.D. Ohio Feb. 3, 2014).
Id. § 3582(c)(1)(A)(i).
Id. § 3582(c) (1)(A)(ii).
Id. § 3582(c)(2).
If Defendant Horne is making a claim based on Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), the power to order concurrency where a federal sentence is imposed before a state sentence and a state judge clearly intended sentence to be served concurrently belongs to the Bureau of Prisons, not the Court. Further, the Court notes that this is not the current situation. Here at the time of federal sentencing, Defendant Horne already had his state sentence, and the federal court did not clearly indicate his intent to have the sentences served concurrently.
--------
Accordingly, the Court DENIES Defendant Horne's motion to request a nunc pro tunc designation to clarify a sentence imposed by this Court.
IT IS SO ORDERED
__________
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE