USA v. Scott

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Demitri Kardeem Scott
Case No. 3:17-cr-00116-TMB-01
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
This matter comes before the Court on Defendant Demitri Scott’s Motion to Correct Judgment
Pursuant to Federal Rule of Criminal Procedure 36 (the “Motion”).1 The Government does not
oppose the Motion.2 For the reasons stated below, the Court GRANTS the Motion.
On October 2, 2018, the Court sentenced Scott to 78 months’ imprisonment followed by a 3-year
term of supervised release for Felon in Possession of a Firearm.3 The Court stated that the sentence
was “to be served concurrently with any sentence imposed in State of Alaska case 3AN-17-
06914CR[;]”4the parties agreed that Scott’s “pending charges with the State of Alaska” were
relevant conduct and were cited in the presentence report to determine Scott’s guideline sentencing
range.5 On April 22, 2019, Scott was sentenced to 8 years’ imprisonment in his state case.6
Scott asks the Court to issue an order reducing his federal sentence to 66 months’ imprisonment
because “the Bureau of Prisons [BOP] will not adjust his sentence to give credit for the 12 months
he served prior to the date of his federal sentencing.”7 Scott argues that he is entitled to this pretrial
credit under the sentencing guidelines, which “direct[] a sentencing court to reduce a sentence for
1 Dkt. 67 (Unopposed Motion to Correct Judgment).
2 Id. at 1.
3 Dkt. 40 (Judgment); see also 18 U.S.C. §§ 922(g), 924(a)(2).
4 Scott was charged with several state crimes based on the conduct underlying his federal offense,
including Robbery, Misconduct Involving Weapons, Theft, Criminal Mischief, and Criminal
Trespass. Dkt. 42 at 13–14. Scott ultimately pled guilty to Robbery in the First Degree. See
ALASKA S TAT. § 11.41.500(a)(1).
5 Dkt. 42 at 3 (Revised Presentence Investigation Report).
6 Dkt. 67-2 at 3, 7 (Alaska Judgment and Order of Commitment).
7 Dkt. 67 at 2. Scott explains that the BOP has awarded only two days’ credit for pretrial
incarceration he served prior to the date of his federal sentencing. Id. at 3. Although the BOP may
award credit for time served prior to imposition of sentence, it will not award credit against a
federal sentence for any pretrial incarceration that has already been credited against another
sentence. See 18 U.S.C. § 3585(b)(2). Here, Scott’s approximately 12-month period of pretrial
incarceration was credited against his state sentence; as a result, BOP has not applied that same
credit against his federal sentence. Dkts. 67 at 5; 67-1 at 3 (Public Information Inmate Data).
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time served in connection with an undischarged state offense that is relevant conduct when ‘such
period of imprisonment will not be credited to the federal sentence by the [BOP].’”8
Federal Rule of Criminal Procedure (“Rule”) 36 permits a district court “at any time [to] 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 scope of clerical errors subject to correction pursuant to
Rule 36 is defined—at least in part—by reference to Rule 60 of the Federal Rules of Civil
Procedure.9 Under the civil rule, “[t]he basic distinction between ‘clerical mistakes’ and mistakes
that cannot be corrected pursuant to Rule 60(a) is that the former consist of ‘blunders in execution’
whereas the latter consist of instances where the court changes its mind.”10
After considering the Motion and the record, the Court GRANTS the Motion at Docket 67 to
correct “an error in the record arising from oversight or omission.”11 The Court intended Scott’s
sentence to be served concurrently with his state sentence. Since the BOP will not award credit for
Scott’s pretrial incarceration—a fact the parties acknowledge they did not realize at the time of
sentencing due to oversight or omission12—the current sentence does not reflect the Court’s
intention. Scott’s sentence is therefore adjusted to a term of 66 months’ incarceration. Doing so
will “conform the sentence to the term[s] which the record indicates was intended” and is,
therefore, proper under Rule 36.13
The Court directs the United States Probation Office to prepare an amended judgment consistent
with this Order.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: December 8, 2022.
8 Dkt. 67 at 2; U.S.S.G. § 5G1.3(b)(2).
9 See Fed. R. Crim. P. 36 advisory committee’s note to 1944 adoption (“The rule is similar to rule
60(a) of the Federal Rules of Civil Procedure.”); United States v. Kaye, 739 F.2d 488, 491 (9th
Cir. 1984) (“The Advisory Committee note to Rule 36 also leads us to the abundant case authority
under Rule 60(a) of the Federal Rules of Civil Procedure.”).
10 Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294, 1297 (9th Cir. 2014) (alteration in original)
(quoting Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987)).
11 Fed. R. Crim. P. 36.
12 Dkt. 67 at 6.
13 Kaye, 739 F.2d at 490.
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