Opinion
CRIMINAL ACTION 13-cr-00151-PAB
03-14-2022
UNITED STATES OF AMERICA, Plaintiff, v. 1. GREGORY LOZADO, Defendant.
ORDER
PHILIP A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on defendant's letter [Docket No. 197], which the Court construes as a motion to alter or amend judgment pursuant to Federal Rule of Criminal Procedure 36. The government does not oppose defendant's motion. Docket No. 200.
A jury convicted defendant of possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Docket No. 78-1. The Court sentenced defendant to 235 months of imprisonment, applying the sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Docket No. 97. Defendant sought to vacate his sentence pursuant to 18 U.S.C. § 2255, arguing that the enhancement did not apply because he did not have three qualifying predicate convictions. Docket No. 131. The Court denied the motion. Docket No. 141. Defendant appealed, and the United States Court of Appeals for the Tenth Circuit remanded for re-sentencing without the enhancement. Docket No. 151. The Court re-sentenced the defendant without applying the enhancement. Docket Nos. 159, 189. The amended judgment, however, states that the defendant was “adjudicated guilty” of “18 U.S.C. §§ 922(g)(1) and 924(e), ” described as “Possession of a Firearm By a Prohibited Person.” Docket No. 183 at 1. Defendant asks the Court to amend judgment to remove the reference to 18 U.S.C. § 924(e) and to change the description of the offense from “possession of a firearm” to “possession of ammunition, ” Docket No. 197 at 1-2, consistent with the jury's verdict and defendant's re-sentencing.
Federal Rule of Criminal Procedure 36 states that, “[a]fter giving any notice it considers appropriate, 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.” The Court agrees that the reference to 18 U.S.C. § 924(e) and the description of the offense a “possession of a firearm” are clerical mistakes and will grant defendant's motion.
Wherefore, it is
ORDERED that letter [Docket No. 197], construed as a motion to alter or amend judgment pursuant to Federal Rule of Criminal Procedure, 36 is GRANTED. It is further
ORDERED that an amended judgment will issue.