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United States v. Davis

United States District Court, D. Kansas

August 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HENRY DAVIS, Defendant.

          ORDER DENYING MOTION TO CORRECT CLERICAL ERROR

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         On March 4, 2014, Defendant pled guilty to two counts of aiding and abetting in Hobbs Act robberies in violation of 18 U.S.C. § 1951(a), stemming from the armed robberies of an EZ Payday Advance facility and a Family Dollar store located in Topeka, Kansas.[1] Defendant was sentenced to a term of 84 months’ imprisonment.[2] This matter is now before the Court on Defendant’s Motion to Correct Clerical Error (Doc. 188). Defendant requests the Court modify the May 27, 2014 Judgment and Commitment Order (“JCC”) pursuant to Fed. R. Crim. P. 36 to reflect that his crime of conviction under the Hobbs Act does not qualify as a crime of violence, which allows the Bureau of Prisons (“BOP”) to classify him as a violent offender and thus limits his ability to utilize the Second Chance Act through home confinement or half-way house placement.

         A court may at any time “correct a clerical error in a judgment.”[3] “Rule 36 gives the court authority to correct clerical-type errors, but does not give the court authority to substantively modify a Defendant’s sentence.”[4] A “clerical error” of the type anticipated by Rule 36 “should appear on the face of the record, leaving little need for adversary proceedings to clarify the issue.”[5] “Typically, this would be an error ‘of the sort that a clerk or amanuensis might commit, mechanical in nature.’”[6]

         Defendant fails to identify any “clerical error” of the type anticipated by Rule 36. Instead, he asks the Court to amend the JCC to add language stating that a conviction under § 1951 should not be used to classify him as a violent offender under BOP policy P5100.08. Clearly, this request is beyond the scope of Rule 36.

         To the extent Defendant is requesting judicial review of the terms of his incarceration, such review is not appropriate at this time. 18 U.S.C. § 3624(c) governs the release of prisoners and does not provide any authority for this Court to review placement or release decisions made by the BOP.[7] Instead, the Attorney General, through the BOP, is responsible for imprisoning federal offenders.[8] The BOP has its own policies that will identify whether Defendant is eligible for prerelease custody placements.[9] Calculation of a federal prisoner’s sentence may be reviewed by a habeas corpus action under 28 U.S.C. § 2241.[10] However, judicial review is only appropriate after the prisoner has exhausted all of his or her administrative remedies with the BOP.[11] Here, there is no indication that Defendant has sought administrative relief by presenting to the Attorney General his request for reclassification as a non-violent offender, nor has he brought a habeas action under § 2241.[12]

         IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to Correct Clerical Error (Doc. 188) is denied.

         IT IS SO ORDERED.

---------

Notes:

[1]Doc. 81.

[2]Doc. 107.

[3]Fed. R. Crim. P. 36.

[4] United States v. Gardner, 601 F. App’x 717, 720 (10th Cir. 2015) (quoting United States v. Blackwell, 81 F.3d 945, 948–49 (10th Cir. 1996) ...


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