United States District Court, D. Alaska
ORDER RE MOTION TO CLARIFY
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 38 is Defendant Cameron Fergerson's
Motion to Clarify Sentence Imposed. The Government did not
file any response to the motion.
BACKGROUND
On
February 25 and March 1, 2014, Cameron Fergerson robbed two
banks of a total of $3, 678.00.[1]
On
March 3, 2014, Mr. Fergerson was arrested for alleged
probation violations in connection with State of Alaska No.
3AN-12-12691 CR, for conduct unrelated to the instant
case.[2] The original offense in that case occurred
on December 3, 2012.[3] In April 2013, Mr. Fergerson was sentenced
by the state court to 36 months, with 30 months suspended on
Count 1, and 20 days on Count 2.[4] Mr. Fergerson's March 3,
2014 arrest stemmed from allegations that he violated his
conditions of probation by failing to report to the probation
officer, ingesting opiates and marijuana, and possessing drug
paraphernalia.[5]
Meanwhile,
on March 10, 2014, a Criminal Complaint was filed in this
Court against Mr. Fergerson for the events of February 25 and
March 1, 2014, alleging bank robbery in violation of 18
U.S.C. § 2113.[6] On March 19, 2014, an Indictment was filed
alleging the two counts of bank robbery.[7] On April 17,
2014, Mr. Fergerson pled guilty to both counts.[8] On July 10, 2014,
Mr. Fergerson was sentenced to a below guidelines sentence of
60 months' imprisonment to be followed by three
years' supervised release.[9] At the sentencing hearing, there
was no discussion of the pending state probation violation
proceedings.
In the
state case, on December 1, 2014, Mr. Fergerson was found to
have violated the conditions of probation and was ordered to
serve the 30 months that had originally been
suspended.[10] Mr. Fergerson has been in custody since
his arrest on March 3, 2014.[11]
DISCUSSION
Mr.
Fergerson asserts that the Bureau of Prisons
“incorrectly calculated the term of [his]
imprisonment” by setting his release date as April 10,
2020.[12] Mr. Fergerson asserts that his 60-month
sentence “should have begun on the date of his
arraignment on these charges, March 20, 2014, or the date of
his arrest which was March 10, 2014.”[13]He contends
that “[a]t the very latest his federal sentence should
have begun” on July 10, 2014, the date of his
sentencing in this case.[14] Accordingly, he asks this Court to
retroactively “exercise its discretion to order a
concurrent sentence.”[15]
Mr.
Fergerson was sentenced in this case on July 10, 2014. His
motion does not specify the basis upon which he is seeking
relief, but no apparent bases are now available. Pursuant to
Federal Rule of Criminal Procedure 35(a), within 14 days of
the entry of a criminal judgment, a court may “correct
a sentence that resulted from arithmetical, technical, or
other clear error.” Pursuant to Criminal Rule 35(b), a
sentence may be reduced upon the Government's motion
after 14 days but only if the reduction is due to the
defendant's substantial assistance and other specific
circumstances apply, none of which are applicable
here.[16] Furthermore, Mr. Fergerson's motion
would be untimely even if it were brought pursuant to 28
U.S.C. § 2255, which applies a one-year statute of
limitations.[17] Therefore, Mr. Fergerson's motion is
untimely.
Mr.
Fergerson cites Setser v. United States for the
proposition that a district court may order that a federal
sentence run concurrently with an anticipated state sentence
that has not yet been imposed.[18] However, the concurrent
sentence must have been ordered at the time that the federal
sentence was entered, which in this case occurred more than
three years prior to Mr. Fergerson's
motion.[19] And here, there is no indication that
the Court at sentencing intended Mr. Fergerson's federal
sentence to run concurrently with a potential sentence
resulting from the unrelated then-pending probation violation
state court proceeding.
CONCLUSION
In
light of the foregoing, Defendant's Motion to Clarify ...