USA v. Holloway et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Lamont Moore
Case No. 3:15-cr-00101-2-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on Defendant Lamont Moore’s Motion to Alter Judgment (the
“Motion”) filed on June 17, 2019.1 The United States filed its Response in Opposition on June 24,
2019.2 The matter is now ripe for resolution by the Court. For the reasons discussed below,
Moore’s Motion to Alter Judgment is GRANTED.
On September 12, 2016, Moore pleaded guilty to one count of Conspiracy to Distribute Controlled
Substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).3 On December 19, 2016, the
Court sentenced Moore to a 120-month term of incarceration.4 During Moore’s prosecution in
federal court, he was simultaneously prosecuted by the State of Alaska for Assault in the First
Degree to which he pleaded guilty.5 On January 4, 2017, Moore was sentenced by the State of
Alaska to a 15-year term of imprisonment.6 In its Judgment, the state court permitted Moore’s
state sentence to run concurrently with his federal sentence.7 However, the Court’s written
Judgment is silent on whether Moore’s sentence was intended to run concurrently with any state
sentence he received.8
Pursuant to the United States Bureau of Prison’s (“BOP”) standard practice, Moore began serving
his state sentence first.9 Moore then petitioned BOP to designate his federal sentence as concurrent
1 Dkt. 743 (Motion).
2 Dkt. 744 (Response in Opposition).
3 Dkt. 383.
4 Dkt. 531 (Sentencing Minute Entry).
5 State of Alaska v. Lamont Moore, Case No. 3AN-15-04428CR
6 Id.
7 Id. (Judgment) (“State agrees that time imposed in the above captioned case may run concurrent
with time imposed in the defendant’s federal case, number 3:15-CR-00101-02-TMB-DMS”).
8 Dkt. 538 (Judgment).
9 Dkt. 744 at 2. At the time of federal conviction, Moore was under the primary jurisdiction of the
state. Letter from John O’Brien, Chief, Bureau of Prisons, to Hon. Timothy M. Burgess, Chief
Judge, District of Alaska (Jan. 22, 2019) (letter forwarded to parties when received). “Normally,
the sovereign which first arrests an individual acquires priority of jurisdiction for purposes of trial,
sentencing, and incarceration.” United States v. Warren, 610 F.2d 680, 684–85 (9th Cir.1980).
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with his state sentence.10 BOP denied his request, claiming that it lacked the authority to make an
independent determination of concurrency.11 BOP then requested that this Court provide guidance
as to how Moore’s federal sentence was intended to run relative to his state sentence.12
Moore, through counsel, filed the present Motion.13 Moore argues that the Court should modify
the Judgment to “make express that the federal sentence imposed is to run concurrent with the
separate sentence later imposed in state court in State v. Lamont Moore, Case No. 3AN-15-04428
CR.”14 Moore further asserts that concurrent sentencing was expressly ordered by the state court.15
Finally, Moore states that his request is not opposed by the United States.16
In response, the United States clarifies that while it does not oppose Moore’s request, the Court
lacks 	jurisdiction 	to 	grant 	the 	requested 	relief;17arguing 	the 	Judgment 	was 	entered 	on
December 26, 2016, “and the time to move to correct the sentence has expired.”18 Further, the
United States argues, the scenario set out in the Motion “does not fit one of the narrow exceptions
set forth in 18 U.S.C. § 3582(c).”19
While the United States’ arguments on Fed. R. Crim. P. 35 and 18 U.S.C. § 3582(c) are well-taken,
the Court construes Moore’s Motion as being made pursuant to Fed. R. Crim. P. 36.20 Rule 36
provides, “[a]fter 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.” “There is no time limit on when the district court may invoke
Rule 36 to correct clerical errors.” 21
Generally, courts use Rule 36 to correct written judgments to conform to the oral sentences
announced from the bench.22 “The only sentence that is legally cognizable is the actual oral
10 Letter from John O’Brien, Chief, Bureau of Prisons, to Hon. Timothy M. Burgess, Chief Judge,
District of Alaska (Jan. 22, 2019) (letter forwarded to parties when received).
11 Id. (citing Sester v. United States, 566 U.S. 231, 237 (2012)).
12 Id. at 2.
13 Dkt. 743.
14 Dkt. 743 at 1.
15 Id.
16 Id.
17 Dkt. 744 at n.1.
18 Dkt. 744 at 2.
19 Id.
20 Rule 35 only allows a court to modify a sentence within 14 days of its issuance. Here, a Rule 35
motion would be time-barred. Additionally, relief under 18 U.S.C. § 3582(c) requires a motion
filed by BOP or the defendant after the defendant has fully exhausted all administrative rights to
appeal a failure of the BOP to bring a motion. No such motion has been filed by BOP, nor has it
been shown that Moore has exhausted his administrative remedies to compel a BOP motion.
21 United States v. Jones, 608 F.2d 386, 389 n. 1 (9th Cir.1979).
22 See, e.g., United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985) (“Rule 36 envisions that
the district court will make a factual finding on whether the clerk of the court committed error in
describing the oral sentence imposed by the court”); United States v. Kaye, 739 F.2d 488, 490 (9th
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pronouncement in the presence of the defendant.” 23 Where a court’s written judgment differs from
the oral sentence imposed in the presence of the defendant, the oral sentence prevails and the
written judgment must be corrected. 24
Therefore, the Court looks to the record to determine whether Moore’s oral sentencing indicates
that his federal sentence was to run concurrently with his anticipated state sentence. 25 During
Moore’s federal sentencing, the United States indicated that Moore’s state sentence would run
concurrently with the federal sentence. 26 The Defense counsel emphasized during the proceedings
that Moore was likely to be given a significant sentence in state court. 27 The Court asked counsel
whether that sentence would run concurrently with Moore’s federal sentence, and Defense counsel
stated that it would.28 Following this extended colloquy, the Court rendered its sentence. 29
It is clear from the record that the Court—and the parties—intended and understood that Moore’s
sentence would run concurrently with the state sentence. The fact that this element of Moore’s oral
sentencing was not memorialized in writing was a clerical error.
Accordingly, Moore’s Motion to Alter Judgment is GRANTED. The Court will issue a modified
Judgment reflecting that Moore’s sentence of 120 months imprisonment runs concurrently to the
15-year sentence imposed by the State of Alaska in State v. Lamont Moore, Case No. 3AN-15-
04428 CR.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: September 23, 2019
Cir. 1984) (“A change made under [Fed. R. Crim. P.] 36 can do no more than conform the sentence
to the term which the record indicates was intended.”).
23 United States v. Munoz–Dela Rosa, 495 F.2d 253, 256 (9th Cir.1974). See also United States v.
Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (“It is the words pronounced by the judge at
sentencing, not the words reduced to writing in the judge's Judgment/Commitment Order, that
constitute the legal sentence.”).
24 See United States v. Munoz–Dela Rosa, 495 F.2d 253, 256 (9th Cir.1974) (reversing a district
court’s denial of a Rule 36 motion to correct the written judgment to match the oral
pronouncement).
25 Dkt. 531.
26 Id.
27 Id.
28 Id.
29 Id.
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