United States District Court, D. Alaska
PROCEEDINGS ORDER FROM CHAMBERS
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE.
The
matter comes before the Court on Defendant Lamont
Moore’s Motion to Alter Judgment (the
“Motion”) filed on June 17, 2019.[1] The United States
filed its Response in Opposition on June 24,
2019.[2] The matter is now ripe for resolution by
the Court. For the reasons discussed below, Moore’s
Motion to Alter Judgment is GRANTED.
On
September 12, 2016, Moore pleaded guilty to one count of
Conspiracy to Distribute Controlled Substances in violation
of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B).[3] On December 19, 2016, the Court sentenced
Moore to a 120-month term of incarceration.[4] During
Moore’s prosecution in federal court, he was
simultaneously prosecuted by the State of Alaska for Assault
in the First Degree to which he pleaded guilty.[5] On January 4,
2017, Moore was sentenced by the State of Alaska to a 15-year
term of imprisonment.[6] In its Judgment, the state court permitted
Moore’s state sentence to run concurrently with his
federal sentence.[7] However, the Court’s written
Judgment is silent on whether Moore’s sentence was
intended to run concurrently with any state sentence he
received.[8]
Pursuant
to the United States Bureau of Prison’s
(“BOP”) standard practice, Moore began serving
his state sentence first.[9] Moore then petitioned BOP to designate
his federal sentence as concurrent with his state
sentence.[10] BOP denied his request, claiming that it
lacked the authority to make an independent determination of
concurrency.[11] BOP then requested that this Court
provide guidance as to how Moore’s federal sentence was
intended to run relative to his state sentence.[12]
Moore,
through counsel, filed the present Motion.[13] Moore argues
that the Court should modify the Judgment to “make
express that the federal sentence imposed is to run
concurrent with the separate sentence later imposed in state
court in State v. Lamont Moore, Case No.
3AN-15-04428 CR.”[14] Moore further asserts that concurrent
sentencing was expressly ordered by the state
court.[15]Finally, Moore states that his request is
not opposed by the United States.[16]
In
response, the United States clarifies that while it does not
oppose Moore’s request, the Court lacks jurisdiction to
grant the requested relief;[17]arguing the Judgment was
entered on December 26, 2016, “and the time to move to
correct the sentence has expired.”[18] Further, the
United States argues, the scenario set out in the Motion
“does not fit one of the narrow exceptions set forth in
18 U.S.C. § 3582(c).”[19]
While
the United States’ arguments on Fed. R. Crim. P. 35 and
18 U.S.C. § 3582(c) are well-taken, the Court construes
Moore’s Motion as being made pursuant to Fed. R. Crim.
P. 36.[20] Rule 36 provides, “[a]fter giving
any notice it considers appropriate, the court may at any
time correct a clerical error in a judgment, order, or other
part of the record, or correct an error in the record arising
from oversight or omission.” “There is no time
limit on when the district court may invoke Rule 36 to
correct clerical errors.”[21]
Generally,
courts use Rule 36 to correct written judgments to conform to
the oral sentences announced from the bench.[22] “The
only sentence that is legally cognizable is the actual oral
pronouncement in the presence of the
defendant.”[23] Where a court’s written judgment
differs from the oral sentence imposed in the presence of the
defendant, the oral sentence prevails and the written
judgment must be corrected.[24]
Therefore,
the Court looks to the record to determine whether
Moore’s oral sentencing indicates that his federal
sentence was to run concurrently with his anticipated state
sentence.[25] During Moore’s federal sentencing,
the United States indicated that Moore’s state sentence
would run concurrently with the federal
sentence.[26] The Defense counsel emphasized during
the proceedings that Moore was likely to be given a
significant sentence in state court.[27] The Court asked counsel
whether that sentence would run concurrently with
Moore’s federal sentence, and Defense counsel stated
that it would.[28] Following this extended colloquy, the
Court rendered its sentence.[29]
It is
clear from the record that the Court-and the parties-intended
and understood that Moore’s sentence would run
concurrently with the state sentence. The fact that this
element of Moore’s oral sentencing was not memorialized
in writing was a clerical error.
Accordingly,
Moore’s Motion to Alter Judgment is
GRANTED. The Court will issue a modified
Judgment reflecting that Moore’s sentence of 120 months
imprisonment runs concurrently to the 15-year sentence
imposed by the State of Alaska in State v. Lamont
Moore, Case No. 3AN-15-04428 CR.
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Notes:
[1] Dkt. 743 (Motion).