2004 | Cited 0 times | D. Maine | June 2, 2004


On February 23, 1999, the late Judge Morton A. Brody of this Courtsentenced Defendant Edward G. Peters to 98 months in prison. On October17, 2003, Mr. Peters moved to clarify and/or amend sentence in accordancewith U.S.S.G. § 5G1.3(b), which he contends requires his federalsentence to run concurrently with state sentences he is serving in NewHampshire State Prison. The Government objects. This Court denies theDefendant's Motion on the ground that he has failed to demonstrate anyerror within the limited purview of Federal Rule of Civil Procedure 36.

I. Statement of Facts.

Edward F. Peters is no stranger to the criminal justice system. Hismost recent criminal history is relevant to this Court's decision.2For purposes of this opinion, the story begins on August 16, 1995, when he was sentenced to 12 monthsin prison and 5 years probation by the New Hampshire Superior Court foran August 8, 1994, attempted burglary. Mr. Peters was released fromprison in April, 1996 and began serving the 5 year term of probation.

In the fall of 1997 and the early winter of 1998, Mr. Peters decided togo on something of a crime spree.3 On October 14, 1997, Mr. Peterscommitted a burglary. On November 16, 1997, November 17, 1997, andNovember 18, 1997, Mr. Peters committed a forgery, a criminal trespass,and two more forgeries in quick succession. After committing these crimesin New Hampshire, Mr. Peters came to Maine. On December 15, 1997, theHoliday Inn in Waterville reported a guest had used a stolen credit cardto rent a room and had fled when the hotel realized the card had beenstolen. The Waterville Police searched his hotel room pursuant to asearch warrant and found a loaded.45 caliber Ruger handgun. It laterturned out that Mr. Peters had stolen the handgun during another burglaryand had stolen the credit card during yet another burglary. While theMaine incidents were under investigation, Mr. Peters returned to NewHampshire and promptly committed two more crimes. On February 1, 1998, hecommitted a theft of services and on February 10, 1998, a theft byunauthorized taking.

The wheels of justice began to grind. Mr. Peters pleaded guilty to theFebruary, 1998, thefts on February 13, 1998, and received a 6 month jailterm by the Plymouth New Hampshire District Court.4 On November 6,1997, the state of New Hampshire filed a petition to revoke his probation on the ground that he hadnot been living at his last known address and had failed to report. Mr.Peters had initially been bailed on the revocation, but once he pleadedguilty to the thefts, his bail was revoked on February 23, 1998.

Things came to a head in the spring of 1998. On April 16, 1998, he wassentenced for violating probation to 2 1/2 to 5 years in prison. On May27, 1998, Mr. Peters was indicted by a Strafford County New HampshireGrand Jury for theft of a handgun, being a felon in possession of afirearm, and two counts of burglary. On June 9, 1998, Mr. Peters wasindicted by a federal grand jury in Maine on eight separate counts. OnJune 23, 1998, he was sentenced in New Hampshire Superior Court for theOctober 17, 1997 burglary to 2 1/2 to 5 years in New Hampshire StatePrison. This term was concurrent with the term imposed on the revocationof probation from the 1994 attempted burglary.

When it sentenced him on June 23, 1998 for the October, 1997 burglary,the New Hampshire Superior Court also sentenced him to a variety ofprison terms for the remaining state crimes. He received 2 1/2 to 5 yearson the three November, 1997 forgeries, the prison terms for which ranconsecutive to the prison term on the October, 1997 burglary. He alsoreceived 6 months on the November, 1997 criminal trespass, the term ofwhich ran concurrently with the state prison term on the October, 1997burglary.

Following the federal indictment on June 9, 1998, United StatesMagistrate Judge Beaulieu issued an Application for Writ of Habeas Corpuson July 9, 1998, ordering the United States Marshal to produce Mr. Petersfrom New Hampshire State Prison for federal arraignment on August 10,1998. The arraignment was actually held on August 20, 1998 and after Mr. Peters entered a not guilty plea, Judge Beaulieuordered Mr. Peters detained pending trial. Mr. Peters changed his plea toguilty on October 8, 1998 and the matter was set forward for theimposition of sentence.

When he appeared before Judge Brody on February 23, 1999 for impositionof sentence on the federal charges, Mr. Peters' status was as follows: 1) His 5 year probation had been revoked on the 1994 attempted burglary and he was serving a 2 1/2 to 5 year term on the revocation; 2) He had completed the six month sentences imposed by the Plymouth New Hampshire District Court for the February, 1998 thefts of services; 3) He was serving 2 1/2 to 5 years on the October, 1997 burglary, a sentence running concurrently with the probation revocation; 4) He had not yet begun to serve the 2 1/2 to 5 years consecutive sentence on the November, 1997 forgeries; and, 5) He had completed the 6 month prison term on the November, 1997 criminal trespass.As if this were not enough, Mr. Peters had a host of additional chargespending in New Hampshire Superior Court at the time of his February 23,1999 federal sentencing. There were arrest warrants outstanding in NewHampshire for four burglary charges all taking place in Rochester, NewHampshire, for two additional forgery charges, and a theft of firearm andfelon in possession of a firearm charges.5

On February 23, 1999, Mr. Peters came for sentencing before JudgeBrody, having pleaded guilty to four counts: (1) a felon in possession offirearm; (2) an interstate transportation of stolen firearm; and, (3) two counts ofuse of a stolen credit card.6 The Judgment In A Criminal Case signedby Judge Brody states as follows: The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 98 months on Counts One, Three, Five and Seven, to be served concurrently.The following additional statement appears in bold in the sentencingjudgment: "The Court intends that the Defendant receive credit for anytime he or she has spent in presentence detention."

After the imposition of the federal sentence, Mr. Peters returned toNew Hampshire State Prison to serve the remainder of his state sentenceand to be sentenced on the remaining state criminal charges. On February28, 2000, Mr. Peters was sentenced by the state of New Hampshire SuperiorCourt to eight concurrent sentences of not less than 2 1/2 years or morethan 5 years on the following pending state charges: (1) Forgery, No. 98-S-138-F; (2) Forgery, No. 98-S 139-F; (3) Theft of a Handgun, No. 98-S-389-F; (4) Felon In Possession of a Firearm, No. 98-S-390-F; (5) Burglary, No. 98-S-391-F; (6) Burglary, No. 98-S-392-F: (7) Burglary, No. 98-S-393-F; and, (8) Burglary, No. 98-S-394-F.On October 21, 2000, Mr. Peters was paroled by the state of New Hampshireand transferred to the custody of federal officials to commence hisfederal prison term. The United States Bureau of Prisons computer recordsindicate that it calculated Mr. Peters' period of incarceration tocommence on October 21, 2000 with a projected release date of December2, 2007. The computer printout indicates that the Bureau of Prisons hasnot applied any credit for time served to Mr. Peters' federal sentence. II. Discussion.

On October 17, 2003, the Defendant moved this Court to issue an Orderclarifying that Mr. Peters' federal sentence should run concurrently withhis entire New Hampshire state criminal sentence. Mr. Peters contendsJudge Brody took into account the New Hampshire state charges when hesentenced him and, therefore, U.S.S.G. § 5G1.3 requires the federaland state sentences to run concurrently. Noting that he had enteredpretrial confinement on March 16, 1998 for the New Hampshire crimes forwhich he was sentenced on February 28, 2000, Mr. Peters argues that thisCourt should correct its sentencing judgment, specifying his federalsentence began March 16, 1998.

A. Procedural Status.7

1. Calculation of Credit for Time Served: 18 U.S.C. § 3585(b).

Title 18 U.S.C. § 3585(b)8 controls the calculation of credit fortime served in official detention prior to the date the sentencecommences. The United States Supreme Court has ruled that the AttorneyGeneral, not the sentencing court, is responsible for this calculation.United States v. Wilson, 503 U.S. 329 (1992); see also United States v.Martin, 363 F.3d 25, 39 (1st Cir. 2004) (noting Attorney General isresponsible for calculating amount of credit granted to defendants). In Rogers v. UnitedStates, 180 F.3d 349, 357-58 (1st Cir. 1999), the First Circuit made itclear that a request for credit for prior custody under18 U.S.C. § 3585(b)(2) must be made, in the first instance, to theAttorney General through the Bureau of Prisons upon imprisonment aftersentencing. Once administrative remedies are exhausted, prisoners maythen seek judicial review of any jail-time credit determination by filinga habeas petition under 28 U.S.C. § 2241. Id.

Mr. Peters makes no assertion that he attempted to exhaust hisadministrative remedies, as required by Rogers, nor does the instantaction purport to be a habeas petition. Following the Government'sresponse, Mr. Peters agreed 18 U.S.C. § 3585(b) would be inapplicable tohis current claim; he is proceeding instead under 18 U.S.C. § 3584(b).9

2. Rule 36 Standard.

In his Reply, Mr. Peters confirmed his motion is filed pursuant toRule 36 of the Federal Rules of Criminal Procedure.10 Rule 36 states: After 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.The First Circuit has stated a Rule 36 motion "is considered generallyinapplicable to judicial errors and omission." United States v. Fahm,13 F.3d 447, 454, n.8 (1st Cir. 1994). In its footnote, the Fahm Courtcited United States v. Daddino, 5 F.3d 262, 264-65 (7th Cir. 1993), which contains a more extensive explanation ofthe rationale behind the restriction in Rule 36 to clerical errors andits inapplicability to errors made by the court itself. See also C.A.Wright, Federal Practice and Procedure § 611 (2d ed. Supp. 1993) ("anerror arising from oversight or omission by the court, rather thanthrough a clerical mistake, is not within the purview of [Rule 36]"). TheAdvisory Committee Note to Rule 36 confirms only that it continues "theexisting law." The Committee cites Rupinski v. United States, 4 F.2d 17(6th Cir. 1925). The Rupinski Court addressed a clerical error in whichthe clerk's blotter had dismissed count 2, not as was ordered count 3.The Court stated: "While the general rule is that the records and decreesof the court cannot be altered after the term, there is a well-recognizedexception in the case of mere clerical errors." Id. at 17 (emphasissupplied).

In his Reply, Mr. Peters points to cases where Rule 36 motions havebeen granted. In United States v. Crecelius, 751 F. Supp. 1035 (D.R.I.1990), Judge Torres granted a Rule 36 motion, increasing a sentence from12 months to 12 months and 1 day in order to allow the defendant toreceive good time credits. Judge Torres reasoned he had intended to orderthe minimum sentence under the guideline range and by adding one day, thesentence was actually less. Id. at 1036. ("an apt illustration of whenmore may be less"). Judge Torres, however, decided Crecelius before theFirst Circuit footnoted its view of Rule 36 in Fahm. Id. at 1037 ("TheFirst Circuit has not yet had occasion to consider whether a divergencebetween the sentence a court intended to impose and that which itactually imposed constitutes a "clerical error" within the contemplationof Rule 36"). Moreover, Judge Torres was the sentencing judge inCrecelius and knew what he had intended had not been accomplished. The remaining cases cited by Mr. Peters stand only for the propositionthat "where an unambiguous oral sentence pronounced by the courtconflicts with the written judgment, the former controls." United Statesv. Matanel, 1993 U.S. App. LEXIS 24624 * 10; United States v. Mojabi,161 F. Supp.2d 33, 37 (D. Mass. 2001). In each case the sentencing judgemade a specific statement at the time of sentencing that was either notcontained in or was contradicted by the judgment. In United States v.McAfee, 832 F.2d 944 (5th Cir. 1987), the district judge stated duringsentencing that he would "not run a concurrent sentence" for the crime ofescape. Id. at 945 n. 1. However, the sentencing judgment failed tomention whether the sentence was consecutive or concurrent and thedistrict judge sua sponte corrected the judgment under Rule 36 one monthafter entering the sentence. The Fifth Circuit ruled that since therecord "clearly discloses the unequivocal intent of the sentencing judgeto impose a consecutive sentence," the trial judge could use Rule 36 toclarify his intention to impose consecutive sentences without violatingthe double jeopardy clause of the Fifth Amendment. Id. at 946.

Similarly, in United States v. Niemiec, 689 F.2d 688 (7th Cir. 1982),the Seventh Circuit concluded that Rule 36 was available to correct "anorder of commitment so that the order more clearly reflects the judge'sintent . . ." Id. (quoting Fitzgerald v. United States, 296 F.2d 37 (5thCir. 1969) ("It is clear that the court by the amendment merely renderedits original intention beyond dispute. The law does not require thatsentencing should be a game in which a wrong move by the judge meansimmunity for the prisoner."))

Guided by the language of Rule 36, the footnote in Fahm, and othercaselaw, this Court reviews the record to determine whether a clericalerror, oversight or omission, as opposed to an error of law, is contained in the sentencing judgment inthis case. Because Rule 36 is limited to the correction of clericalerrors, this Court's analysis is similarly circumscribed. The Rule 36standard is a daunting one for Mr. Peters. Natanel, supra at * 10("unambiguous oral sentence pronounced by the court conflicts with thewritten judgment"); Crecelius, 751 F. Supp. at 1037 ("a failure toaccurately reflect the clearly expressed intent of the sentencingCourt"); United States v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987)(en banc) ("an orally pronounced sentence controls over a judgment andcommitment order when the two conflict."); United States v. Sasser,974 F.2d 1544, 1562 (10th Cir. 1992), cert. denied, 506 U.S. 1085(1993); McAfee, 832 F.2d at 946 ("The terms of an oral pronouncement thatclearly provide for a consecutive or concurrent sentence control acontrary, silent or ambiguous written judgment."); Johnson v. Mabry,602 F.2d 167, 170 (8th Cir. 1979) ("the oral sentence pronounced by thesentencing judge constitutes the judgment, and anything inconsistent withthe judgment which is included in a commitment order is a nullity.").

B. Rule 36 Analysis.

On this record, there is simply no evidence of a clerical error in theSentencing Judgment. Mr. Peters has not provided the Court with atranscript of the February 23, 1999 sentencing hearing and there is nobasis for this Court to conclude that Judge Brody's oral sentence wasinaccurately transposed into the Sentencing Judgment.

Mr. Peters' claim is based on a different argument. He contends themandate of U.S.S.G. § 5G1.3(b) is so clear, Judge Brody's SentencingJudgment "can have only one meaning: that the Court intended . . . Mr.Peters' Federal sentence to run concurrent with the full length of any related state sentence pursuant to U.S.S.G. §5G1.3(b)."11 Def.'s Reply Brief at 4. The short and unanswerableresponse is if the Sentencing Judgment is so crystal clear, no clericalerror need be corrected. Defendant's argument must therefore, be withothers who he contends are misinterpreting the Court's clearly expressedintent.12 This is not a Rule 36 issue.13

III. Conclusion.

Accordingly, the Defendant's Motion to Correct Clerical Error isDENIED.


1. The original motion was captioned "Defendant's Federal Rule ofCriminal Procedure Rule 36 Motion To Clarify And/Or Amend Sentence InAccordance With U.S.S.G. § 5F1.3(b)." After the Government objectedto the motion in part because a Rule 36 motion is restricted to "clericalerror in a judgment, order, or other part of the record, or . . . anerror in the record arising from oversight or omission," the Defendantstated in footnote 4 of his Reply Memorandum that "it may have beentechnically more accurate to entitle his motion "Rule 36 Motion toCorrect Clerical Error." Defendant is correct and this Court will treatDefendant's footnote as a motion to change caption and grant it.

2. Mr. Peters criminal history stretches back to July 14, 1986, whenhe was first arrested for theft by unauthorized taking for which he wassentenced to a suspended prison term of seven days. He was also convictedof a number of instances of forgery in 1987. However, these earlierconvictions are not relevant to the issues presented by his motion.

3. To be precise, it is more accurate to say that his crime spreebegan in the spring of 1997. Mr. Peters had been arrested on June 25,1997 on four burglary charges all taking place in Rochester, NewHampshire, had been arrested on September 19, 1997 on a forgery charge,and had been re-arrested on September 29, 1997 on yet another forgerycharge.

4. Technically, it was his February 1 and 10, 1998 crimes as well asthe fact he had numerous criminal charges pending that caused hisprobation to be revoked on the 1994 attempted burglary.

5. The theft of a firearm and felon in possession of a firearm wereNew Hampshire state charges arising from one of the Rochester NewHampshire burglaries. The federal Pre-Sentence Investigation Reportindicates that the gun from that burglary was found in the Waterville,Maine hotel room; it was this gun that formed the basis of the federalgun charges. The report further stated that the credit card found in theWaterville hotel room came from one of the other Rochester, New Hampshireburglaries. The report goes on to describe a third Rochester, NewHampshire burglary. It was alleged to have involved the burglarizing ofMr. Peters' girlfriend's apartment. The criminal complaint alleged thathe stole and later pawned her diamond engagement ring and a diamond andruby ring.

6. Counts 2, 4, 6 and 8 of the eight count Indictment were dismissedupon motion of the Government.

7. Mr. Peters did not directly appeal Judge Brody's sentencingjudgment. Moreover, Mr. Peters has not attempted to invoke the provisionsof 28 U.S.C. § 2255, which provides in part that "a prisoner in custody. . . claiming the sentence was in excess of the maximum authorized bylaw, or is otherwise subject to collateral attack, may move the courtwhich imposed the sentence to vacate, set aside or correct the sentence."Id.

8. 18 U.S.C. § 3583 states as follows: (a) Commencement of sentence-A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. (b) Credit for prior custody-A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences — (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.

9. The following sentence appears in the Defendant's reply: "TheGovernment incorrectly argues that Mr. Peters was required to exhaust hisadministrative remedies, apparently based upon a mistaken assumption thatMr. Peters is proceeding pursuant to 18 U.S.C. § 3583(b), as opposedto § 3584(a)." Def.'s Reply Brief at 9.

10. Even though his initial memorandum was captioned as a Rule 36Motion, the Government noted that if the motion was being filed underRule 35, the seven day time limit from sentencing had long sinceexpired. F.R.Crim.P. 35 ("Within 7 days after sentencing., the court maycorrect a sentence that resulted from arithmetical, technical, or otherclear error."); United States v. Fahm, 13 F.3d at 453-54 (1st. Cir.1994). In his reply, Mr. Peters reiterated he is proceeding under Rule 36only. See fn 1 above.

11. Defendant Peters reiterates this point in his Reply Brief: "Theonly logical meaning of the language, including the word, "any," is thatthe Court was referring to the period that Mr. Peters had spent in statecustody beginning March 16, 1998, including the period of time duringwhich he was borrowed by the federal government via a writ of habeascorpus adprosequendiim." Def. `s Reply Brief zt 6.

12. In Defendant's Reply Brief, Mr. Peters argues that the "Bureauof Prisons ("BOP") is proceeding on the mistaken assumption that hiscurrent sentence began on the date he was released by New Hampshireofficials into the custody of federal officials." Def. `s Reply Briefat 8.

13. In so ruling, this Court is not implying any position on thecorrectness of Mr. Peters' underlying substantive argument: that hisfederal and state sentences should run concurrently. This Court'sanalysis is limited to clerical error, not errors of law orinterpretation. Mr. Peters cannot present the latter issues to this Courtunder the guise of a Rule 36 motion.

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