Opinion
Criminal Case No. 04-cr-00461-EWN.
May 2, 2006
ORDER
This matter is before the court on Defendant's motion (#51) to correct a clerical error in the court's judgment. Specifically, Defendant claims that the proper sentence should be thirty-eight months, not forty-two months. Defendant reasons that the court granted the Government's motion for a departure under U.S.S.G. § 5K1.1 (2005). The Government recommended a twenty-five percent departure from the bottom of the guideline range. Defendant correctly concludes that such a departure would result in a sentence of thirty-eight months.
Defendant's major premise is faulty. As the transcript of the sentencing hearing discloses, the court only granted part of the Government's motion. The court stated that it would "grant the Government's motion and depart by 25 percent from the sentence that it otherwise would have imposed." The court declared that the sentence which it would otherwise have imposed would be a sentence at the mid-point of the guideline range, not the bottom:
[I]f the Government had not filed a section 5K1.1 motion, the court would impose a sentence consistent with the guideline range somewhere in the middle of the guideline range. The primary reason for that is the defendant's very serious criminal history and the court's belief that a sentence in the middle of the guideline range would be the appropriate sentence.
A sentence of forty-two months is the result of a twenty-five percent departure from the mid point of the guideline range. Thus, the oral sentence, the court's memorandum of sentencing hearing, and the judgment all correctly reflect the court's intent. Accordingly, the referenced motion is DENIED.