United States District Court, E.D. Wisconsin
ORDER DENYING MOTION FOR RESENTENCING OR MODIFICATION
OF SENTENCE PURSUANT TO FEDERAL RULES OF CRIMINAL PROCEDURE
18 U.S.C. §3582(C)(2) AND 28 U.S.C. §2255(C) (DKT.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
20, 2011, Judge Charles N. Clevert, Jr. revoked the
defendant's supervised release, and sentenced him to
serve twenty-four months in custody, consecutive to the
sentence imposed by the Milwaukee County Circuit Court in No.
2010CF001806. Dkt. No. 31. The government had recommended
that the court impose the revocation sentence to run
consecutively to the state-court sentence, while the
defendant's attorney asked Judge Clevert to impose the
sentence to run concurrently. Id. at 2. Judge
Clevert adopted the government's recommendation. The
court entered the revocation judgment on July 22, 2011. Dkt.
No. 32. (It entered an amended judgment three days later,
correctly identifying the prosecutor who had participated in
the revocation hearing. Dkt. No. 33.)
months later, the defendant sent Judge Clevert a letter,
asking him to credit the two months the defendant had spent
in a halfway house (Genesis) prior to revocation against his
two-year revocation sentence. Dkt. No. 36. Judge Clevert
responded that he could not credit the time the defendant
spent at Genesis against his revocation sentence. Dkt. No.
November 2, 2017, the court received the current motion from
the plaintiff. Dkt. No. 38. The court regrets that it has taken so
long for it to address the motion. The court is aware that
the defendant has written the court on several occasions,
asking why he has not heard anything.
this motion did not come to the court's attention until
recently. The court apologizes to the defendant for the
defendant asks the court to modify his sentence, to require
that it be served concurrently with his state sentence.
Id. at 4-5. In the alternative, he asks the court to
hold a hearing on his motion. Id. at 5. The court
will deny the motion.
Clevert sentenced the defendant six and a half years ago.
Fed. R. Crim. P. 35(a) allows a court to “correct a
sentence that resulted from arithmetical, technical, or other
clear error” within fourteen days of the date it
imposed the sentence. That deadline has long passed.
Crim. P. 36 allows a court to correct a “clerical error
in a judgment [or] order” at any time. But the
defendant is not alleging that Judge Clevert made a clerical
error. Rather, he argues that Judge Clevert failed to
adequately explain why he imposed the sentence to run
consecutively, and says that Judge Clevert had no
“justifiable reason” for imposing a consecutive
sentence. Dkt. No. 38 at 3-4.
defendant cites 18 U.S.C. §3582(c)(2) in his motion.
That statute says that a court may not modify a term
of imprisonment once it has imposed it unless (a) the
director of the Bureau of Prisons asks it to for
“extraordinary and compelling reasons” or
compassionate reasons based on age, (b) a statute or Fed. R.
Crim. P. 35 authorizes the reduction, or (c) the Sentencing
Commission has lowered the sentencing range for the
defendant's offense. None of those conditions is present
here. The director of the BOP has not filed a motion asking
the court to reduce the defendant's sentence. No. statute
authorizes the reduction, and as the court has noted, the
Rule 35 deadline has passed. The Sentencing Commission has
not changed the revocation guidelines applicable to the
defendant. The defendant cited two Tenth Circuit decisions,
United States v. Green, 405 F.3d 1180, 1188 n.8
(10th Cir. 2005), and United States v. Corber, 596
F.3d 763 (10th Cir. 2010), for the proposition that the court
has the authority to reduce a defendant's sentence if the
reduction is consistent with Sentencing Commission policy
statements. Dkt. No. 38 at 4. Green does not say
that. It listed the three bases for modifying a sentence
listed in §3582, and found that they did not apply.
Green, 405 F.3d at 1184. Corber considered
whether the Sentencing Commission had changed the
defendant's applicable guideline range, determining that
it had not. Corber, 596 F.3d at 766. Even if these
cases did say what the defendant claims they said,
they are not binding on this court. This court is located in
the Seventh Circuit, which means it is only bound by
decisions issued by the Seventh Circuit.
defendant also cites 28 U.S.C. §2255(c). Dkt. No. 38 at
1. Section 2255 of Title 28 is the federal habeas
corpus statute; it allows a prisoner in federal custody
to ask the court to vacate, set aside or correct a sentence
on the ground that the sentence “was imposed in
violation of the Constitution or laws of the United States .
. . .” 28 U.S.C. §2255(a). The defendant argues
that under United States v. Simms, 626 F.3d 966 (7th
Cir. 2010), Judge Clevert's decision to impose the
revocation sentence consecutively to the state court sentence
was unlawful, because he did not adequately explain it. Dkt.
No. 38 at 2.
defendant cannot seek relief under §2255, even if he is
arguing that the sentence Judge Clevert imposed violated the
laws of the United States. At the time he filed his motion,
the defendant was still in state custody. Only a defendant in
federal custody can file a petition under
§2255. The defendant's status has changed-he now is
in USP Marion, a federal correctional facility. Dkt. No. 43.
But the defendant filed his request too late. Section
2255(f)(1) requires a defendant to file his petition within
one year of the date on which his conviction became final.
Judge Clevert entered the amended judgment on July 25, 2011.
Under Fed. R. App. P. 4(b)(1), the defendant had fourteen
days to file his notice of appeal from that sentence. He did
not appeal, so his sentence became “final” for
the purposes of §2255(f)(1) on August 8, 2011. That
deadline has long passed, and the court cannot extend it.
the court notes that the defendant's reliance on the
Simms case is misplaced. The Seventh Circuit did not
specifically find that the defendant needed to be resentenced
because the sentencing judge had not adequately explained his
decision. The Seventh Circuit found that the reason the judge
gave for imposing a consecutive revocation sentence-to make
sure the defendant served a significant sentence even if he
won some of his arguments on appeal-was illogical.
Simms, 626 F.3d at 972.
court DENIES the defendant's motion for
resentencing or ...