United States District Court, D. Kansas
ORDER DENYING MOTION TO CORRECT CLERICAL
A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.
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. Defendant was sentenced to a term of 84
months’ imprisonment. 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.
may at any time “correct a clerical error in a
judgment.” “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.” 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.” “Typically, this would be an
error ‘of the sort that a clerk or amanuensis might
commit, mechanical in nature.’”
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.
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
Instead, the Attorney General, through the BOP, is
responsible for imprisoning federal offenders. The BOP has its
own policies that will identify whether Defendant is eligible
for prerelease custody placements. Calculation of a federal
prisoner’s sentence may be reviewed by a habeas
corpus action under 28 U.S.C. § 2241. However,
judicial review is only appropriate after the prisoner has
exhausted all of his or her administrative remedies with the
BOP. 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.
IS THEREFORE ORDERED BY THE COURT that
Defendant’s Motion to Correct Clerical Error (Doc. 188)
IS SO ORDERED.
Fed. R. Crim. P. 36.
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) ...