United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT'S LETTER MOTION TO
CORRECT JUDGMENT (DKT. NO. 29)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
hearing on July 18, 2017, the court revoked the
defendant's supervised release, and sentenced him to
serve a term of eight months in custody. Dkt. No. 26. The
court gave the defendant a deadline of July 21, 2017 at 12:00
noon to surrender, so that he could get his children on a
plane to California to stay with a relative until he'd
completed the sentence. Id.
day he was scheduled to surrender-July 21, 2017-the defendant
appeared in Milwaukee County Circuit Court on charges of
Operating While Under the Influence-Third Offense (Wis. Stat.
§346.63(1)(a)); Operating with a Prohibited Alcohol
Concentration/passenger in car (Wis. Stat.
§346.63(1)(b); and Disorderly Conduct (Wis. Stat.
§947.01(1)). State v. Kenneth L. Riddle,
Milwaukee County Circuit Court Case No. 2017CF003328, found
at https://wcca.wicourts.gov. The defendant was
turned over to Justice Point for supervision. Id. at
Dkt. No. 24. Although the case was scheduled for a jury
trial, on October 18, 2017, the defendant pled guilty to the
charge of having a prohibited alcohol level, id. at
Dkt. No. 7, and the court sentenced him to serve a sentence
of twelve months in the House of Corrections, straight time,
id. at 6.
October 30, 2017, this court received a letter from the
defendant, sent from the Milwaukee County Jail. Dkt. No. 29.
The defendant asked this court to “consider starting
[his] 8 month sanction to begin running as of July 21st 2017
and continue running concurrently with [his] 12 month HOC
sentence also beginning on July 20th 2017.”
Id. at 1. The defendant indicates that the state
court judge told him to write to this court and make this
request. He indicates that if this court grants the request,
he will be able to reunify with his children “before
[his] reunification timeline expires July 2018.”
Id. He says that if the reunification timeline
expires, however, his children will be permanently placed in
foster care. Id.
court construes the defendant's letter as a motion to
correct the judgment the court entered on July 20, 2017.
There are two rules which allow for correction of a judgment:
Federal Rule of Criminal Procedure 35 and Federal Rule of
Criminal Procedure 36. Rule 35 provides that, within fourteen
days after sentencing, the court “may correct a
sentence that resulted from arithmetical, technical, or other
clear error.” The defendant did not file this motion
within fourteen days of his July 18, 2017 sentencing, and he
does not allege that the judgment contained any errors. So
Rule 35 does not apply. Rule 36 says that at any time, the
court may “correct a clerical error in a judgment . . .
or correct an error in the record arising from oversight or
omission.” Again, the defendant does not allege that
his judgment contained an error or omission. So Rule 36 does
court sentenced the defendant under the United States
Sentencing Guidelines. There is a provision in the Guidelines
which says that “if a state term of imprisonment is
anticipated to result from another offense that is relevant
conduct to the instant offense of conviction [in federal
court] . . ., the sentence for the instant offense shall be
imposed to run concurrently to the anticipated term of
imprisonment.” U.S.S.G. §5G1.3(c). This provision
applies in cases where, at the time the federal court is
imposing sentence, it anticipates that the defendant
“will be sentenced in state court and serve a state
sentence before being transferred to federal custody for
federal imprisonment.” Application Note 3 to U.S.S.G.
§5G1.3(c). It also applies only when the state court
offense “is relevant conduct to the instant offense of
5G1.3(c) does not apply here. As of the date this court
sentenced the defendant-July 18, 2017-the court had no reason
to anticipate that the defendant was going to be sentenced in
state court on anything; he had not even been charged in
state court on July 18, 2017. Further, the state-court
conduct-driving with a prohibited alcohol level with a
passenger in the car-is not relevant conduct to the federal
offenses-various violations of the defendant's supervised
release which occurred in March, May, June and early July
2017. See Dkt. No. 25 at 1-2.
as the court can tell, between 1:12 p.m. on July 18, 2017,
when the federal sentencing hearing ended, and sometime
before noon on July 21, 2017-the day he was supposed to
surrender-the defendant got into a car with a passenger and
drove while he was under the influence. He was arrested for
that, and as a result, never appeared to surrender to serve
his federal sentence. He then was prosecuted and convicted,
and has been sentenced to serve twelve months in the House of
Corrections (with ninety-two days' credit). If the
defendant serves his entire state sentence, he will be
eligible for release on July 18, 2018-273 days after his
sentencing in state court.
defendant asks this court to reopen his judgment and order
that he serve his eight-month federal sentence concurrently
with the sentence imposed by the state court judge three
months later, so that he can complete both sentences before
the deadline for him to reunify with his children. He says
the reunification deadline is in July 2018, but does not say
the court does not have the authority to do what the
defendant asks. This court imposed its sentence, not only
before the state court judge imposed sentence, but before the
state charges were even brought against the defendant. The
court is not aware of any authority in the Sentencing
Guidelines or other federal law allowing the court to reopen
a judgment and order that the federal sentence run
concurrently to a sentence imposed in a case that had not
even been filed at the time the federal court imposed its
sentence. The state court judge was the last judge to impose
sentence. This court is not familiar enough with state law to
know whether state law would have allowed Judge Wall to
impose his sentence to run concurrently to the one imposed by
this court (given that the defendant hadn't yet
surrendered to start serving his federal sentence when Judge
Wall imposed the state sentence). But if state law did allow
that, Judge Wall would have been the judge most likely to
have that authority, not this court.
court recalls the defendant's struggles as a single
father with an addiction problem to try to keep his family
together. The court allowed the defendant to self-surrender
to serve his federal sentence solely to give him the
opportunity to get his children on a plane to California, so
that they would be cared for while he served his federal
term. But it appears that, in allowing the defendant to
self-surrender, the court ended up giving him the opportunity
to drink and drive, and to pick up a new state charge. The
court wants the defendant to be able to be with his children.
But the court cannot do anything about the fact that after it
gave the defendant the opportunity to self-surrender, he got
in trouble on a new charge.
court DENIES the defendant's letter
motion to ...