Opinion
NO. CR. S-03-0509 WBS.
April 9, 2007
ORDER
Defendant has filed a request to correct his sentence pursuant to Rule 36 of the Federal Rules of Criminal Procedure. "Rule 36 is a narrow provision limited to correction of errors of no more than clerical significance." United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984). The gist of defendant's complaint is that the Bureau of Prisons has improperly calculated the date upon which the sentence imposed by this court should have commenced.
Regardless of whether Rule 36 is provides the proper procedure for raising plaintiff's claim, the Bureau of Prisons' computation of this court's sentence is correct. 18 U.S.C. § 3585(b) provides that:
"A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence."
Although the indictment in this case was filed December 3, 2008, at that time defendant was serving a state sentence for violation of parole on a charge for which he was originally arrested before the commission of the offense charged in this case. His "official detention" on this charge did not begin until January 7, 2004, when the Magistrate Judge signed the detention order at the time of defendant's initial appearance on these charges. Thus, the Bureau of Prisons has properly calculated the service of defendant's sentence to have begun on January 7, 2004.
IT IS THEREFORE ORDERED that defendant's request to correct his sentence pursuant to F.R.Crim.P. 36 be, and the same hereby is, DENIED.