Tag Archives: FRCrimP 36

Misteaks Happen, but Rule 36 Doesn’t Always Fix Them – Update for October 26, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

7TH CIRCUIT SAYS TWO WRONGS SOMETIME DO MAKE A RIGHT

hammer160509Dave McClain ran into some trouble after the BOP released him from a drug trafficking sentence in 2012. He violated the terms of his supervised release by picking up a new drug charge, not to mention a state charge for fleeing an accident in which someone died. The state tried him first, sentencing him to 20 years. The federal court then sentenced him to 120 months for the new drug charge and 24 months for the supervised release violation. The court let 24 months of the 120-month sentence run concurrent with his state fleeing-the-scene sentence, but everything else was consecutive.

I don’t know what 20 years equated to in Illinois, but apparently not much. After his state bit was done, Dave went to federal prison for the balance of his sentence. That sentence changed several times. In 2013, a Supreme Court decision resulted in a sentence cut from 144 to 90 months – 72 months for the drugs and 18 months for the supervised release violation. The court’s ruling that 24 months of his federal time be concurrent with the state sentence he’d just completed stayed in place, leaving Dave with 66 months of federal time to do after he got out of state prison.

mistake170417The 2013 resentencing was where the first mistake was made. The written judgment didn’t match what the judge said at sentencing. Instead, the written judgment said that 24 months of the drug sentence – as well as the entire 18-month supervised release sentence – would run concurrent to the state sentence. That gave Dave only 48 months of federal time after he got out of state prison, rather than extra the 66 months the judge intended him to serve.

In 2016, Dave got resentenced again, taking advantage of the Sentencing Commission’s change in the drug guidelines to reduce all categories by two levels. That cut his overall sentence to 70 months, with 24 months running concurrent and 48 months running consecutive to the state sentence. The 2016 judgment repeated the 2013 mistake, making the supervised release violation concurrent to state time. If that wasn’t enough, the math was wrong: 24 and 48 add up to 72 months, not the 70-month total stated in the judgment.

It took the parties five years to catch the error. In February 2021, Dave and the Government jointly proposed a revised sentence. The agreed-upon judgment imposed 70 months in prison, correcting the mathematical errors. The correction didn’t fix the error making Dave’s supervised release violation concurrent to state time.

welcomeback181003The Federal Bureau of Prisons sent to Dave home confinement in April 2021 for the final two months of his sentence. But that was about when some eagle-eyed prosecutor finally figured out that the district court’s written judgment gave Dave 18 months more concurrent time than the court had imposed at sentencing. The government filed a motion under Federal Rule of Criminal Procedure 36 to make that time consecutive, essentially telling Dave that he had to go back to prison for another 18 months.

Rule 36 lets a district court correct clerical errors in a judgment at any time. The government cited the discrepancy between the oral and written sentences, and argued that the written sentence should be corrected so that Dave did 64 months – not 48 months – after his state sentence was over. The district court granted the Rule 36 motion over Dave’s objection, holding it had authority do so because clerical errors had caused the written sentence to differ from the sentence imposed at the sentencing hearing. Dave went back to prison.

Dave appealed. Last week, the 7th Circuit held that Dave was done and sent him home.

The Circuit admitted that an inconsistency between an oral pronouncement and the written sentence is a clerical error within the scope of Rule 36, and “Rule 36 allows for correction of such a clerical error at any time.” But Rule 36, the 7th said, did not apply here.

The government argued that if the sentences as of February 2021 were left to stand, Dave would be released after serving only 48 months of imprisonment consecutive to his state sentence, rather than the orally pronounced sentence of 64 months. The appeals court replied, “That point has some truth, but it does not necessarily make either sentence ripe for correction under Rule 36… The uncontroversial proposition that an oral pronouncement controls when the corresponding written judgment differs is not useful here, when (1) multiple changes to the sentence were made without further oral pronouncements, and (2) the written judgment under attack does not correspond to the only oral pronouncement. The government fails to explain why the 2013 oral pronouncement remains the reference point even though it was later modified twice—once with the government’s agreement and once with no objection.”

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The Circuit said the problem was that the Rule 36 grant did not do what it purported to do, that is, to conform the 2013 written sentence to the oral pronouncement that Dave serve 66 months total of federal time after the state sentence. Instead, in granting the Rule 36 motion, “the district court imposed the 66 months from 2013 and subtracted the 2 months from the 2016 guidelines-based reduction.” The 7th observed that “[t]he district court treated this as an unremarkable simplification, but to get there, it had to simultaneously discard and incorporate the 2016 and February 2021 modifications. It treated the oral 2013 sentence as the one true sentence, but it still incorporated adjustments that came years later.” Rule 36 does not go that far.

The government pointed out that the 2016 and 2021 reductions resulted in a sentence below Dave’s retroactively amended guideline range, something the district court did not have the authority to impose. But the Circuit said ‘tough’: “If an order accurately reflects the judge’s decision,” it cannot be corrected by a Rule 36 motion, “even if the sentence was erroneous.”

Here, the February 2021 written sentence – meant to correct the 2016 sentence – reflects not only the judge’s decision but the joint proposal of the parties. Even if the district court lacked the authority to enter that sentence, it was not corrected within 14 days under Rule 35(a), so it was still enforceable.

United States v. McClain, Case No 21-2089, 2021 U.S.App. LEXIS 31162 (7th Cir., October 18, 2021)

– Thomas L. Root

Going Back to the Well – Update for September 24, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

F.R.Crim.P. 36: There’s Life in the Old Carcass – Update for July 2, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MAYBE RULE 36 IS NOT TOOTHLESS AFTER ALL

Everyone knows that Rule 36 of the Federal Rules of Criminal Procedure permits a defendant to move to correct a clerical error in the criminal case judgment. Over the years, I have found it useful mainly to correct mistakes in the defendant’s name, which invariably become part of the BOP record. Beyond that, we all are aware that Rule 36 cannot correct mistakes of fact or law, and for sure cannot lead to a reduced sentencing.

error161101Last week, the 4th Circuit suggested that maybe we have it wrong. Lamont Vanderhorst’s district court denied his Rule 36 motion to correct a clerical error in his Presentence Report. The PSR characterized one of his state convictions as “conspiracy to sell and deliver cocaine.” In fact, the conviction was “conspiracy to traffick [sic] cocaine by transportation.”

As a result of the clerical error, the district court wrongly sentenced Lamont as a career offender.

The district court denied the motion, holding that Rule 36 cannot serve as a means of pursuing resentencing. The Circuit disagreed, holding that “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.” The 4th said that “when an error is purely a ‘clerical error in a judgment, order, or other part of the record, “the policy of finality is trumped and a court is authorized to correct the error at any time.”

Unfortunately, Lamont had four other priors that supported his career offender designation, so he was denied relief anyway. But the principle makes Rule 36 potentially a powerful gadget in the collateral-relief toolbox.

United States v. Vanderhorst, 2019 U.S. App. LEXIS 18886 (4th Cir. June 25, 2019)

– Thomas L. Root