United States District Court, S.D. Alabama, Northern Division
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE
action is before the Court on defendant Rodrick R.
Hunter's Motion to Amend Nunc Pro Tunc (doc. 65) and the
response in opposition filed by the United States (doc. 67).
Hunter moves the Court to “amend the SRT revocation
order (Doc. 59), nunc pro tunc, to March 14, 2017,
and designate the Dallas County Jail as the place for service
of the SRT revocation sentence” (doc. 65). Upon
consideration and for the reasons set forth herein,
Hunter's motion is DISMISSED for lack of jurisdiction.
October 11, 2102, Hunter was sentenced to sixty months for
the offense of possession of a firearm during a drug
trafficking crime (doc. 29). On the evening of February 6,
2017, while Hunter was serving his term of supervised
release, he was arrested by State of Alabama law enforcement
and charged with possession of stolen property (a gun) and
possession of a pistol after conviction of a crime of
violence (doc. 65). On April 12, 2017, Hunter's term of
supervised release was revoked and he was committed to the
custody of the United States Bureau of Prisons to serve a
seven-month sentence of imprisonment (doc. 59).
moves the Court to modify the judgment for revocation and
designate the Dallas County Jail as the place for service of
the seven-month revocation sentence. As grounds, Hunter
argues that he “has been unable to make bail in the
State cases” and that his cases “have not yet
been presented to a grand jury” (doc. 65, p. 2).
Therefore, he “has been unable to commence service of
the SRT revocation sentence” (doc. 65, p. 2). Hunter
argues that a nunc pro tunc amended judgment would
ensure that his inability to make bail “will not cause
him to serve more time than the court intended in its
revocation order.” (Id.) However, Hunter does
not provide any case law, rule or statute that would give the
Court jurisdiction to modify the judgment as requested.
United States responds that the Court lacks jurisdiction
under either Rule 35(a) or Rule 36 of the Federal Rules of
Criminal Procedure to amend the judgment. The United States
argues that Hunter's inability to make bond was not
“discussed prior to the pronouncement of [his]
sentence” and “was not part of the basis for the
defendant's sentence” (doc. 67, p. 1).
district courts have limited statutory jurisdiction to modify
a sentence. Pursuant to 28 U.S.C. § 3582(c)(2), the
Court may modify a sentence under certain limited
circumstances, none of which are present in Hunter's
request. The statute provides for modification of a sentence
on motion from the Director of the Bureau or Prisons,
pursuant to Rule 35, or when a “defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission[.]” However, the Director has not filed a
motion and Hunter does not allege that the Sentencing
Commission has lowered his sentencing range.
provides for correcting a sentence within fourteen days after
sentencing, for “arithmetical, technical, or other
clear error.” Fed. R. Crim. P. 35(a). Since Hunter has
not alleged an error in his sentence, and more than
fourteen days have passed, relief under this Rule is not
available. Id. Rule 35(b) provides for reduction of
sentence on motion of the United States for a defendant's
substantial assistance. Fed. R. Crim. P. 35(b). Since the
United States has not filed a motion, Rule 35(b) does not
provides that the district court "may at any time
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." Fed. R. Crim. P. 36. As
previously stated, Hunter has not alleged an error in his
sentence. Also, Rule 36 may not be used to make a substantive
amendment to a criminal sentence, such as requested by
Hunter. See United States v. Portillo, 363 F.3d
1161, 1164 (11th Cir. 2004).
the Bureau of Prisons has the authority to designate the
place of Hunter's imprisonment and “may designate
any available penal or correctional facility” that
meets certain standards, after consideration of the statutory
factors for designation. 18 U.S.C. § 3621(b)
the Court lacks jurisdiction to modify Hunter's sentence,
the motion is due to be dismissed for lack of jurisdiction.
 As a result of the same conduct,
Hunter was indicted for the offenses of prohibited person in
possession of a firearm (Count 1) and possession of a stolen
firearm (Count 2). See United States v. Hunter,
Criminal Action No. 2:17-00024-KD-N (S.D. Ala. 2017). Count 2
was dismissed on the United States' motion. ...