United States of America v. Arthur Mollo

2011 | Cited 0 times | D. Maine | November 21, 2011

ORDER ON DEFENDANT'S MOTION TO AMEND

The defendant has asked me to amend the Judgment and Commitment of December 20, 2010, to order the Bureau of Prisons to give him credit for a particular period of time served or, in the alternative to issue a Memorandum to the Bureau of Prisons on that subject. Def. Letter Mot. (Docket Item 87). (He believes the BOP will take the Memorandum into account.) I DENY the motion to amend. I have no authority to amend the Judgment and Commitment Order at this late date, see time limits in Fed. R. Crim. P. 35(a), and there is no clerical error that would permit amendment under Fed. R. Crim. P. 36.

As for the request for a Memorandum to the Bureau of Prisons, I decline to provide it. First, the defendant has not shown that he has pursued his administrative remedies in requesting the credit he seeks. Second, the transcripts of the hearings of September 23 and December 20, 2010, demonstrate clearly that at the time I had no clear understanding of how he would be credited, although it appears that the topic was on the defendant's mind. Tr. of Revocation Hr'g & Waiver/Plea, Sept. 23, 2010 (Docket Item 83); Tr. of Sentencing, Dec. 20, 2010 (Docket Item 82). In fact, on December 20, 2010, I ended his questioning about custody status by stating: "Why don't you talk to your lawyer. I can't give you legal advice. Talk to your lawyer. Sit down and have a discussion with your lawyer." He did so and then I inquired "All set?" to which he responded "Yes," and I adjourned the proceeding. Tr. of Sentencing, Dec. 20, 2010 at 16-17. The motion is therefore DENIED.

SO ORDERED.

D. BROCK HORNBY

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