USA v. Burns

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOSEPH WILLIAM BURNS,
Defendant.
4:19-CR-3089
ORDER
The defendant has filed a motion (filing 69) asking the Court to "correct"
its judgment by reducing its sentence to provide him with what would in effect
be a downward departure pursuant to U.S.S.G. § 5K2.23. Section 5K2.23
(which has since been deleted, see U.S.S.G. Amend. 836) provided that
downward departure may be appropriate if the defendant (1) has
completed serving a term of imprisonment; and (2) subsection (b)
of §5G1.3 (Imposition of a Sentence on a Defendant Subject to
Undischarged Term of Imprisonment or Anticipated Term of
Imprisonment) would have provided an adjustment had that
completed term of imprisonment been undischarged at the time of
sentencing for the instant offense.
That section was at least potentially relevant to the defendant, who at the time
of his federal sentencing had already been sentenced to a series of consecutive
state terms of imprisonment. See filing 42 at 1-2; filing 43; filing 46 at 14-16.
But the Court knew that at the time. And while the defendant complains
that his lawyer "erred" because she "should have requested . . . an adjustment
at sentencing . . . [t]o account for the time served on the related state
sentence(s)," the defendant's lawyer did make that request—she expressly
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asked the Court to give the defendant credit for six months served on a state
court sentence, and ten months served since his federal arraignment "in the
form of a reduction of his sentence of 16 months to account for this time, rather
than leave the matter to the discretion of the Bureau of Prison for determining
appropriate credit for time served." Filing 42 at 2.
The Court granted that request in part, varying six months below the
advisory guidelines range, but otherwise only recommending credit for time
served to the Bureau of Prisons. See filing 46 at 21; filing 48; filing 49. And
because the judgment was silent as to whether the federal sentence should be
served concurrently or consecutively to the state sentences, the terms ran
consecutively by default. See Harris v. Wallace, 984 F.3d 641, 645 (8th Cir.
2021) (citing Setser v. United States, 566 U.S. 231, 236 (2012)). This Court's
silence, in other words, required consecutive sentences. See Elwell v. Fisher,
716 F.3d 477, 484 (8th Cir. 2013) (citing 18 U.S.C. § 3584(a)).
The Court imposed the sentence it meant to impose, and there is nothing
to "correct." Any issues with how the Bureau of Prisons has calculated the
defendant's time served credit is, as the defendant knows, a matter to be raised
with the Bureau of Prisons. See filing 66. Accordingly,
IT IS ORDERED that the defendant's motion to correct the
judgment (filing 69) is denied.
Dated this 13th day of January, 2026.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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