Opinion
Case No. 1:16-cr-6
2023-12-12
UNITED STATES of America v. Delante TURNER, Defendant.
Rebeca H. Bellows, U.S. Attorney, Karen Ledbetter Taylor, Alexander Edward Blanchard, Marc Jeffrey Birnbaum, William Sloan, United States Attorney's Office, Alexandria, VA, Amanda St. Cyr, DOJ-USAO, Alexandria, VA, for United States of America.
Rebeca H. Bellows, U.S. Attorney, Karen Ledbetter Taylor, Alexander Edward Blanchard, Marc Jeffrey Birnbaum, William Sloan, United States Attorney's Office, Alexandria, VA, Amanda St. Cyr, DOJ-USAO, Alexandria, VA, for United States of America.
ORDER
T. S. ELLIS, III, United States District Judge.
This matter is before the Court on defendant's Motion to Correct a Clerical Error pursuant to Rule 36, Fed. R. Crim. P. (Dkt. 209). Counsel was appointed to represent defendant in connection with defendant's Rule 36 motion (Dkt. 218). The matter has been fully briefed and argued and is therefore ripe for disposition. For the reasons stated below, defendant's Rule 36 motion must be denied.
I.
Between October 2015 and November 2015, defendant and his co-conspirators planned and committed the armed robberies of fourteen commercial establishments in the Eastern District of Virginia. See Presentence Investigation Report (PSR) ¶¶ 14-19. Defendant and his co-conspirators took turns brandishing the firearm used, entering the businesses, and driving the getaway vehicle. See id. ¶ 21. In all fourteen robberies and one attempted robbery, defendant or one of his co-conspirators brandished a firearm, usually at close quarters, to instill fear in the victims.
On March 3, 2016, a federal grand jury sitting in the Eastern District of Virginia returned a superseding indictment charging defendant with 32 counts, including 16 counts of violating 18 U.S.C. § 924(c) (Dkt. 40). On April 5, 2016, the government allowed defendant to plead guilty to only two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). In exchange for defendant's guilty plea, the government dismissed the remaining 30 counts pending against him, including 14 of the counts of violating § 924(c) (Dkt. 66).
At the time, § 924(c) sentences were covered by a lengthy mandatory minimum and were "stacked," allowing the government to charge offenders with a second and subsequent violation in the same criminal incident. In light of these harsh consequences, the government often allowed defendants to plead down to fewer counts of § 924(c) violations than the government would have otherwise pursued. Here, the government declined to pursue 14 of the § 924(c) charges for which defendant was indicted.
Prior to sentencing, the Probation Office prepared a PSR, which includes a recitation of defendant's criminal history and the number of criminal history points attributable to his prior convictions. The PSR reflects that, on March 23, 2007, defendant was arrested after committing a carjacking on March 22, 2007 and that defendant was subsequently convicted of robbery. PSR ¶ 52. The PSR further reflects that, on August 24, 2007, defendant was arrested after committing a second carjacking on August 14, 2007 and that defendant was subsequently convicted of carjacking and assault with a dangerous weapon. Id. ¶ 53. Defendant was sentenced for the offenses associated with both the first and the second carjacking on February 14, 2008. Id. ¶¶ 52-53. The PSR indicates that defendant's criminal convictions resulted in a "criminal history score of six" and that defendant was a career offender. Id. ¶¶ 54, 56. Defendant received an additional two points because he was still under the sentence from a previous offense when he committed the crime for which he was being sentenced, making his total criminal history score eight. Id. ¶ 55. Defendant
raised no objections to the PSR when he appeared for sentencing on July 7, 2016.
To the contrary, defendant testified under oath that: (i) defendant had reviewed the PSR with counsel; (ii) the PSR was accurate regarding defendant's personal background; and (iii) defendant did not have any additions, corrections, or comments with respect to the PSR. See July 7, 2016 Sentencing Tr. at 3-4 (Dkt. 202). In his sentencing memorandum, defendant likewise did not raise any objections to the PSR and focused solely on the 18 U.S.C. § 3553(a) sentencing factors. See Defendant's Position on Sentencing Factors (Dkt. 110).
On July 7, 2016, defendant was sentenced to a prison term of 32 years, the mandatory minimum sentence at the time for two § 924(c) brandishing convictions. Several years later, on February 22, 2021, defendant filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), arguing that the First Step Act's amendment of § 924(c)'s penalty provision, which reduced the mandatory minimum for two brandishing convictions from 32 years to 14 years, constituted an extraordinary and compelling reason to reduce defendant's sentence. On May 25, 2022, defendant's compassionate release motion was granted in part and denied in part. See United States v. Turner (Order on Deft.'s Mot. for Compassionate Release) (Dkt. 205). The Order granted in part defendant's motion for compassionate release, noting that defendant had established extraordinary and compelling circumstances justifying a sentence reduction pursuant to § 3553(a) and United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). Specifically, defendant's sentence was reduced from 32 years to 20 years. The Order denied defendant's motion for a compassionate release insofar as defendant requested a reduction in his sentence to 14 years.
Defendant now seeks a further sentence reduction under Rule 36, arguing for the first time that there was a clerical error in his PSR. In short, defendant contends (i) that the probation office erred in noting an arrest that never occurred and, as result, incorrectly calculated defendant's criminal history and (ii) that this mistake is a clerical error warranting relief under Rule 36. Specifically, defendant for the first time claims that he was not, as the PSR states, arrested in between committing the two 2007 carjackings. As a result, according to defendant, the Court erred in treating defendant's prior felony sentences separately for Guidelines purposes rather than treating the offenses as one because of their common sentencing date. Additionally, defendant seeks correction of the portion of the PSR setting forth the applicable statutory period for supervised release, the special assessment available, and the statutory fine per count.
In his supplemental memorandum in support of his Rule 36 motion, defendant raises the additional issue that the offense to which he pled guilty in connection with the March 2007 carjacking—unarmed robbery under what is now § 22-2801 of the Code of the District of Columbia—is not a "crime of violence" as that term is defined in U.S. Sentencing Guidelines ("U.S.S.G.") § 4B1.2(a) and therefore that defendant lacked the two prior crime-of-violence convictions necessary to be classified as a career offender. Deft.'s Supplemental Mem. in Supp. of his Rule 36 Mot. at 8-10 (Dkt. 222). However, in his reply brief, defendant concedes that this issue is "a substantive issue and not a clerical issue" that would be appropriate to consider in a Rule 36 motion. Deft.'s Reply to Gov.'s Resp. at 9 (Dkt. 233). Instead, defendant requests that his non-career offender status be considered in any resentencing. Id. Because, for the reasons stated below, resentencing is inappropriate here, there is no reason to address further whether defendant's conviction for robbery is a career offender predicate offense.
II.
Defendant claims that the PSR is incorrect in stating that defendant was arrested
between committing a carjacking in March 2007 and committing a different carjacking in August 2007. By defendant's account, defendant was not arrested after his first carjacking, nor charged with any offenses associated with the first carjacking until after defendant committed and was arrested for the second carjacking. Defendant claims that, while in custody after his arrest for the second carjacking, defendant confessed to the first carjacking out of concern for a friend who had been arrested for the first carjacking. Only then was defendant charged with offenses associated with the first carjacking.
Defendant asserts that, in considering an intervening arrest that never occurred, the Probation Office improperly treated the two offenses as separate when calculating defendant's criminal history, thereby committing a "clerical" error. Defendant therefore allegedly received more criminal history points and was designated a career offender. For this claim, defendant cites to the Sentencing Guidelines, which provide that sentences are counted separately if they are separated by an intervening arrest but, absent such an arrest, should be counted together if the sentences are imposed on the same date. See U.S.S.G. § 4A1.2(a)(2). Even if defendant's assertion regarding the intervening arrest is correct regarding the lack of an intervening arrest, defendant's claim cannot be properly brought as a clerical error under Rule 36, Fed. R. Crim. P.; the error, if any occurred, was not a clerical error but a substantive one and it is an error that should have been raised in 2016 when defendant was first sentenced based on the allegedly incorrect criminal history. The error could also have been raised in a section 2255 petition within one year of his sentencing in 2016. Nor was it raised in defendant's first motion for compassionate release in 2021. Even if defendant's assertion regarding the absence of an intervening arrest is correct, defendant's claim is not properly cognizable under Rule 36, Fed. R. Crim. P.
Rule 36 has a narrow scope that only permits sentence modification when the defendant can show that the error is purely clerical—that is, a "recording or scrivener's error[ ]." United States v. Vanderhorst, 927 F.3d 824, 828 (4th Cir. 2019); see also United States v. Powell, 266 F. App'x 263, 266 (4th Cir. 2008). A clerical error is not one "of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature." United States v. Guevremont, 829 F.2d 423, 426 (3d Cir. 1987). Out of concern for the important interest of finality, challenges to judicial and substantive errors are not cognizable under Rule 36. Vanderhorst, 927 F.3d at 827.
When faced with attempts to disguise a substantive error as one amenable to correction under Rule 36, courts have consistently declined to modify a defendant's sentence. If, in the instant case, defendant had shown that he was not arrested in
See, e.g., Urena v. United States, No. 99-cr-73, 2010 WL 4823593 (S.D.N.Y. Nov. 29, 2010) (denying as non-clerical a defendant's request for correction of his status as a career offender based on recently obtained state court records clarifying that two prior arrests were in fact consolidated for sentencing); United States v. Dillman, No. 5:11-cr-44, 2019 WL 7169786 (W.D. Va. Dec. 24, 2019) (rejecting as outside the scope of Rule 36 a defendant's challenge to his classification as a career offender on the grounds that he did not commit the two predicate offenses prior to committing the instant offense); United States v. Ingram, No 14-303(2), 2019 WL 1455478 (D. Minn. Apr. 2, 2019) (rejecting as non-clerical the defendant's claim that his PSR incorrectly treated his previous convictions as separate in calculating his criminal history).
March 2007 and that the probation officer had simply written down the wrong date in the PSR, then there might have been error amenable to correction under Rule 36. But that is not the case here; rather, defendant's assertion that he was not arrested on March 23, 2007 after the first carjacking is inconsistent with the record. The National Crime Information Center ("NCIC") report reflects that defendant was arrested on March 23, 2007 for unauthorized use of a vehicle (Dkt. 230-A). Although defendant notes that NCIC reports can sometimes be inaccurate, defendant provides nothing showing defendant was not, in fact, arrested on the date referenced in the PSR and the NCIC report. At this late stage, seven years after his sentencing and 16 years after the events in question, defendant seems to want an evidentiary hearing to determine the date on which he was arrested for the carjacking he committed in March 2007. Rule 36 does not permit that sort of expansive review.
The proper vehicle to challenge the purported error in this case would have been a motion pursuant to Rule 32(f), Fed. R. Crim. P., which requires that challenges to the PSR be filed within 14 days of receipt of the PSR. The Rule 32(f) deadline, however, passed more than seven years ago. Nor did defendant raise the issue at sentencing or when first seeking compassionate release. Given the long delay and many missed opportunities to raise the issue, the Court lacks authority to entertain defendant's Rule 36 motion at this time. To conclude otherwise would effectively transform Rule 36 motions into 28 U.S.C. § 2255 motions without the corresponding time limitations.
In any event, it is doubtful that it would have made any difference to defendant's sentence whether he received eight or six criminal history points nor is it likely that his categorization as a career offender had an impact on his sentence. At his initial sentencing, defendant was sentenced to the mandatory minimum for his offenses. His criminal history points and categorization therefore could not have changed the sentence. Nor were defendant's criminal history points and categorization likely to have impacted the resentencing following defendant's compassionate release motion. For some unknown reason, the Sentencing Guidelines chose to give offenses special treatment if they have a common sentencing date and no intervening arrest. But the undisputed reality is that defendant committed two factually unrelated offenses several months apart against different victims. That reality, rather than the odd result stemming from a common sentencing date in the absence of an intervening arrest, would very likely have weighed far more heavily in this Court's decision-making in resolving defendant's first compassionate release request. Moreover, as it is dubious that any error in defendant's criminal history points or career offender designation affected the extent to which defendant's sentence was reduced pursuant to his request for compassionate release, defendant is unlikely to be entitled to resentencing even if the alleged error were clerical. See Vanderhorst, 927 F.3d at 827 ("Rule 36 may serve as an appropriate vehicle for a defendant to obtain resentencing when a clerical error likely resulted in the imposition of a longer sentence than would have been imposed absent the error.").
At oral argument, counsel were asked if either of them knew the reason and they did not.
III.
Additionally, although raised only in defendant's pro se motion and not
briefed by his counsel or addressed by the Government, defendant argues that there are also clerical errors on pages 24 and 25 of the PSR, which set forth the applicable statutory period for supervised release, the special assessment available, and the statutory fine per count. Defendant notes that, on pages 24 and 25, the PSR refers to Counts 5 and 7 or Counts 7 and 10, when defendant was convicted of Counts 20 and 32. While these appear to be typographical errors otherwise amenable to correction under Rule 36, defendant does not allege that the errors affected his sentencing or prejudiced him in any way. As discussed in the preceding section, errors—even if clerical—are not amenable to correction under Rule 36 if they make no difference to a defendant's sentence.
* * * * *
In sum, defendant has failed to provide adequate grounds to conclude that there have been any clerical mistakes that warrant the Court's correction.
Accordingly,
It is hereby ORDERED that defendant's Motion to Correct a Clerical Error (Dkt. 209) is DENIED.