Opinion
2:18-cr-0218-RFB-VCF
04-05-2022
UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH ROAQUE, Defendant.
RENE L. VALLADARES Federal Public Defender KATHERINE TANAKA Assistant Federal Public Defender Attorney for JOSEPH ROAQUE
RENE L. VALLADARES Federal Public Defender
KATHERINE TANAKA Assistant Federal Public Defender Attorney for JOSEPH ROAQUE
UNOPPOSED MOTION TO CORRECT JUDGMENT UNDER FED. R. CRIM. PROC. 36
This motion is timely filed-there is no deadline. Undersigned counsel communicated with AUSA Susan Cushman regarding the instant motion. Ms. Cushman indicated the government did not have any objections to this request to correct the judgment.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Joseph Roaque, through counsel, requests this Court correct an error in the February 2020 judgment (ECF No. 86). As currently written, the judgment imposes a sentence of:
On November 5, 2020, Mr. Roaque mailed a letter to this Court requesting clarification on his sentence. ECF No. 108. Undersigned counsel has been in contact with Mr. Roaque on multiple occasions to update him, explain his sentencing situation, and discuss the filing of this motion.
One hundred, forty (140) months as to Count One; to run concurrent with Nevada State case #C326055.
Under the terms of the parties' plea agreement, and consistent with what was discussed and ordered at Mr. Roaque's February 6, 2020, sentencing, Mr. Roaque requests the judgment be corrected to include his second then-pending Nevada state case, so that the sentence reads:
One hundred, forty (140) months as to Count One; to run concurrent with Nevada State case #C326055 and case #C329227-5 .
II. ARGUMENT
Under Federal Rule of Criminal Procedure 36, “[after 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.”
On July 11, 2019, Mr. Roaque pleaded guilty to Count One of the indictment, Conspiracy to Distribute a Controlled Substance, pursuant to a plea agreement. Under the terms of the plea agreement, the parties agreed that the government would recommend the federal sentence run concurrent with any state sentence imposed in Case Nos. C-17-326055-1 and C-18-329227-5.
In violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(viii).
ECF No. 64.
ECF No. 63.
(Image Omitted)
Mr. Roaque filed a sentencing memorandum noting the same.
ECF No. 81 at 3.
On February 6, 2020, Mr. Roaque appeared before this Court for his sentencing. At Mr. Roaque's sentencing, in accordance with the plea agreement, defense counsel requested this Court order the federal sentence to run concurrent to Mr. Roaque's state case. During argument, defense counsel inadvertently mentioned only one of Mr. Roaque's pending state cases. Neither the government nor defense counsel raised any reason to deviate from what was intended under the terms of the plea agreement or what was requested in defense counsel's sentencing memorandum.
ECF No. 85.
ECF No. 110 at 10, 21.
Id. Undersigned counsel confirmed with Mr. Roaque's prior counsel that the reference to only one of Mr. Roaque's state cases was inadvertent and that the original intent of the parties' plea agreement and Mr. Roaque's sentencing memorandum had not changed.
Thus, Mr. Roaque requests this Court correct the judgment to add Mr. Roaque's second then-pending state case-Nevada State Case # C329227-5. As Mr. Roaque was in primary state custody when the government filed the indictment in this case, he was arrested and brought into federal custody pursuant to a Writ of Habeas Corpus ad Prosequendum on July 25, 2018. Without the requested correction, there is a concern Mr. Roaque will stop receiving credit towards his federal sentence when he completes his sentence for Nevada State Case # C326055, which was set to expire in July 2021; and his federal sentence will not begin to run again until he completes the sentence for Nevada State Case #C329227-5, which is set to expire in 2028.
See PSR at 1.
According to the Nevada Department of Corrections website, Mr. Roaque's sentence for Nevada State Case #C326055 expired on July 27, 2021. See (Joseph Roaque, ID 1038251) https://ofdsearch.doc.nv.gov/. Undersigned counsel spoke to BOP counsel. Because Mr. Roaque is currently in primary state custody, the BOP has not calculated his release date and will not have that date until he is transferred to primary federal custody. Mr. Roaque is thus requesting this correction in an abundance of caution.
III. CONCLUSION
For the foregoing reasons, Mr. Roaque requests this Court correct the judgment to reflect Mr. Roaque's sentence as the following:
One hundred, forty (140) months as to Count One; to run concurrent with Nevada State case #C326055 and case #C329227-5.
ORDER
IT IS SO ORDERED.