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Sentencing Court’s Grant of Prior Custody Credit was Not ‘Clear Error’ to Allow for Removal

by Dale Chappell

The government’s “eleventh hour” motion to “correct” a sentence to remove credit for time served in a related case before federal sentencing was improperly granted by the district court, the U.S. Court of Appeals for the Fifth Circuit held November 16, 2017.

When Derrick Smothers, Terrell Smothers, and Thomas Hankton were sentenced, the district court gave them credit for time already served on related state charges prior to federal sentencing. The government did not object. However, the government — at the “eleventh hour” — backtracked and filed a motion under Federal Rule of Criminal Procedure 35(a) to “correct” their sentences in order to remove the credit for pre-federal sentencing custody. The district court granted the motion. All three appealed.

On appeal, the Court focused on Derrick’s sentence, as any ruling on his would affect all three. Derrick, like the others, had served a prior state sentence for a case related to his federal case, and the district court reduced his sentence to account for that state custody time. Under Rule 35(a), the court had just 14 days to “correct” any “clear error” in Derrick’s sentence. The government filed its motion on the 13th day, giving the court less than a day to decide a matter that one Bureau of Prisons (BOP) attorney characterized as “probably the single most confusing and least understood federal sentencing issue,” regarding the rules on granting federal prisoners pre-sentencing custody credit.

Under 18 U.S.C. § 3585(b), the BOP has authority to give a federal prisoner pre-sentencing custody credit, if that custody was not credited toward another sentence. However, a district court has the authority under U.S.S.G. § 5G1.3(b) to “adjust” a sentence to account for a related “undischarged” (not yet completed) sentence and under § 5K2.23 for a “discharged” sentence, if the BOP cannot give the credit.

Between §§ 5G1.3 and 5K2.23, “courts have the authority to reduce a defendant’s sentence for any previous time served on related charges whenever the BOP will not grant that credit,” the Fifth Circuit explained.

The government convinced the district court at the last minute that its reduction under § 5G1.3(b) was in error because Derrick’s state sentence was already discharged. Working at “breakneck speed” to meet the 14-day deadline, the court apparently took the government at its word and “corrected” the sentences to remove the pre-sentencing credit. The government failed to mention the court had authority under § 5K2.23, though, allowing for credit with respect to the discharged sentence.

Contrary to the government’s argument, “the district court had authority to reduce Derrick’s sentence based on previous time served,” the Fifth Circuit determined. Under Rule 35(a), an error may be “corrected” only if it is an “obvious error,” the Court explained. Rule 35(a) “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court to simply change its mind,” the Court said.

The Court concluded that the district court had authority under the Guidelines to reduce the sentences to allow credit for time served on the state charges, and Rule 35(a) was not a proper mechanism to remove that credit. Accordingly, the Court vacated the order correcting all three defendants’ sentences and reinstated the original judgments for each of them. See: United States v. Hankton, 875 F.3d 786 (5th Cir. 2017). 

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