United States District Court, D. Kansas
AMENDED MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Amended Order proves a proposition that probably doesn't
need proving. Judges, like other human beings, sometimes make
mistakes. That's precisely what happened here. But
correcting that mistake does not change the outcome for Mr.
the background: On March 30, 2017, the court conducted a
final revocation hearing in Mr. Walker's case. Mr. Walker
stipulated to violating six conditions of his supervised
release. The highest grade of the six was a Grade C violation
and those violations, combined with Mr. Walker's Category
VI criminal history, produced a policy statement range of
eight to 14 months. The court sentenced Mr. Walker to 14
months but imposed no new term of supervised release. A week
later, Mr. Walker filed a Motion for Order Nunc Pro Tunc.
Doc. 98. It asked the court to recommend that the Bureau of
Prisons give Mr. Walker sentence credit for time he had spent
living at a halfway house under modified conditions that
applied to the term of supervised release. To his credit, Mr.
Walker recognized that the court lacked “jurisdiction
to award any sentence credit.” United States v.
Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994). But
likening his request to other recommendations that sentencing
judges sometimes make, Mr. Walker asked for an
“advisory” recommendation that the Bureau give
credit for time he had spent living at the halfway house.
the mistake: In its original Order on this subject - Doc. 100
- the court asserted that Mr. Walker already had made this
request at his final revocation hearing, and the court had
rejected it. Doc. 100 at 1. This is where the court erred.
Simply, it confused Mr. Walker's request in his motion
with a similar request that another offender had made in
another revocation hearing conducted just a few days after
Mr. Walker's hearing. The record confirms that Mr. Walker
had made no such request during his hearing. So, by this
Order, the court corrects Doc. 100 to omit this erroneous
its error noted and correction completed, the court now
returns to the substance of Mr. Walker's nunc pro tunc
motion. Should the outcome of Mr. Walker's motion change?
The court concludes that result stands. The following
paragraphs explain why.
procedural nuances, Mr. Walker's motion asks the court to
“correct the judgment” by issuing an order nunc
pro tunc. See Doc. 98 at 1. But the relief his
motion seeks doesn't really fit within this kind of
motion. Our Circuit has explained the purpose of an order
nunc pro tunc:
The function of a nunc pro tunc order is to recite the action
theretofore taken but not properly or adequately recorded. It
is not the function of an order nunc pro tunc to alter the
judgment actually rendered. Its purpose is to merely correct
the record of the judgment. A court does not have the power
to modify an original judgment under the guise of an order
nunc pro tunc.
Cairns v. Richardson, 457 F.2d 1145, 1149 (10th Cir.
1972) (citations omitted). More recently, the Circuit
amplified the proper role of a nunc pro tunc order. The
relief grantable on such an order “is merely
descriptive of the inherent power of the court to make its
records speak the truth - to record that which was actually
done, but omitted to be recorded. It is no warrant for the
entry of an order to record that which was omitted to be
done.” Sviridov v. Ashcroft, 358 F.3d 722, 731
(10th Cir. 2004) (citation and internal quotation marks
omitted). Mr. Walker never asserts - nor could he - that the
judgment entered against him inaccurately “record[s]
that which was actually done” at his hearing.
Id. The truth is that Mr. Walker's motion
invites the court to do something it cannot do -
“modify an original judgment under the guise of an
order nunc pro tunc.” Cairns, 457 F.2d at
moving to the substance of Mr. Walker's request, the
court is convinced that it was right to decline it. In
Reno v. Koray, 515 U.S. 50 (1995), the Supreme Court
held that time spent under restrictive conditions of release
(including time spent in a community treatment center (CCC)
or some similar facility) was not official detention
entitling an inmate to credit for custody time under 18
U.S.C. § 3585(b). Id. at 52. The Supreme Court
concluded that the confluence of the Bail Reform Act and 18
U.S.C. § 3585(b) supported the BOP's interpretation
that a defendant either is released (with no credit for time
under conditions of release) or detained (with credit for
time in official detention). Id. at 57. In so
holding, Koray explicitly overruled Brown v.
Rison, 895 F.2d 533 (9th Cir. 1990). As a consequence,
awarding presentence time credit under 18 U.S.C. § 3585
for time spent under restrictive conditions was discontinued.
Koray, time spent in residence at a CCC or some
other similar facility under the Pretrial Services Act of
1982 (18 U.S.C. §§ 3152-3154), or on a condition of
bond or release on own recognizance (18 U.S.C. §§
3141-3143, formerly § 3146), or as a condition of
parole, probation or supervised release, is not creditable to
the service of a subsequent sentence. Koray, 515
U.S. at 60 n.4. Also, even a release condition that is
“highly restrictive” (including “house
arrest”, “electronic monitoring, ” or
“home confinement”) or one requiring a defendant
to report daily to the United States Marshal, United States
Probation Office, or some other person is not considered as
time spent in official detention. Id. In sum, under
Koray, a defendant is not entitled to any credit off
a subsequent sentence - no matter the severity or degree of
restrictions - if the defendant's release was on a
condition of bond or as a condition of parole, probation, or
motion recognizes, beginning in January 2017, Mr. Walker
began living at a halfway house because he had violated a
condition of the term of supervised release imposed on him by
his original sentence. Doc. 98 at 1. Mr. Walker readily
agreed to modify his conditions to give the United States
Probation Officer discretion to require him to live there.
See Doc. 84 at 2. This modified condition permitted
Mr. Walker to avoid an otherwise mandatory revocation
following his many failed drug tests. In no way was his
halfway house experience even close to the kind of official
detention that would justify the recommendation he seeks.
the court declines to make a recommendation - even an
advisory one - inviting the Bureau of Prisons to disregard
settled law. The defendant's Motion for Order Nunc Pro
Tunc (Doc. 98) is denied. The court also directs the clerk to
modify the docket to show that the court's order of April
13, 2017 (Doc. 100) is corrected in part by this Amended