United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
the Court is defendant Ozzie Thomas' Motion to Reconsider
Under Federal Rule of Criminal Procedure 35(a). (Doc. 92).
Thomas urges the Court to “reconsider its
judgment” (Doc. 92 at 1). On March 9, 2018, the Court
found by a preponderance of the evidence that Thomas violated
the conditions of his term of supervised release. As a
result, the Court imposed a 24-month prison term followed by
a 12-month term of supervised release. (Doc. 90). Thomas'
motion was timely, as it fell within 14 days after
Rule of Criminal Procedure 35(a) allows a court to
“correct a sentence that resulted from arithmetical,
technical, or other clear error.” Fed. R. Crim. P.
35(a). Because Thomas challenges neither the mathematical nor
technical aspect of the Court's sentence, presumably
Thomas contends the sentence was “clear error.”
12, 2017, in response to a probation officer's petition,
Thomas' term of supervision was revoked upon belief by
his probation officer that Thomas violated a condition of his
release. One condition of Thomas' release was that he
refrain from committing another state, federal, or local
crime. In April 2017, Thomas was accused of sexually abusing
another resident of his housing complex. And on April 28,
2017, Thomas was arrested and charged with Sexual Abuse,
First Degree, in violation of 13A-6-66 of the Code of
Alabama, a Class C felony. (Doc. 57 *SEALED*).
argues that only two of the three witnesses present were
eye-witnesses. He proceeds to argue that on the day of the
incident, he received dialysis treatment, which would have
exhausted him. Moreover, he states that some of the witnesses
identified him - both in court and in written statements - as
Arthur, despite his claim he never went by that name. Thomas
also attacks the testimony of Rene Hendrix, the manager of
the apartment complex, suggesting her testimony in court
contradicted an earlier written statement. Thomas did not
offer new information or evidence in support of his motion.
reliance on Fed. R. Crim. P. 35(a) to challenge the
court's decision to revoke his supervised release is
misplaced. Thomas does not allege the Court incorrectly
calculated his sentence. Instead, he invokes Rule 35(a) in an
attempt to revisit the Court's judgment that Thomas
violated the conditions of his supervised
release. Such an argument is inapplicable in the
Rule 35(a) context.
35(a)'s applicability is extremely narrow. Fed. R. Crim.
P. 35 advisory committee's notes (1991) (“The
authority to correct a sentence under this subdivision is
intended to be very narrow . . . .”). “The
Eleventh Circuit has interpreted Rule 35(a) to be unavailable
where the original sentence ‘was not illegal, and any
error was not of an acknowledged and obvious type, the kind
that would almost certainly result in a remand of the case to
the trial court for further action.'” United
States v. Mosley, No. CRIM. 12-0013-WS, 2015 WL 1956444,
at *1 (S.D. Ala. Apr. 29, 2015) (quoting United States v.
Lett, 483 F.3d 782, 789 (11th Cir. 2007)). The errors
must be obvious ones that “either resulted in an
illegal sentence or those errors that would almost certainly
result in a remand on appeal.” United States v.
Celedon, 353 Fed.Appx. 278, 280 (11th Cir. 2009).
errors must be related to the sentence. Fed. R. Crim. P.
35(a) (“the court may correct a
sentence”) (emphasis added). Thomas does not
argue the Court committed any clear error in imposing and
calculating his sentence. Specifically, he does not allege
the 24-month sentence was illegal nor so obvious that it
would certainly result in a remand upon appeal. Instead,
Thomas invokes Rule 35(a) to urge the Court to
“reconsider its prior holding that Thomas violated his
conditions of release and [instead] reinstate him on
supervised release.” (Doc. 92 at 3). Thomas'
argument attacks the Court's finding that by a
preponderance of the evidence Thomas violated the conditions
of his supervised release, not that the 24-month term
constituted clear error.
Court sentenced Thomas to a total term of 24 months, followed
by a term of 12 months of supervised release. (Doc. 90). This
sentence was not clear error. A court may modify or revoke a
defendant's term of supervised release “if the
court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant
violated a condition of supervised release . . . .” 18
U.S.C. § 3583(e). The prison term for violating a
condition of one's supervised release is limited by this
statute, and depends upon “the offense that resulted in
the term of supervised release.” Id. If the
offense that resulted in the term of supervised release is a
class C felony, as Thomas' was, (Doc. 47) the statute
limits the time a defendant can serve to no more than two
years in prison. 18 U.S.C. § 3583(e)(3). The 24-month
prison term did not exceed the statutory maximum. Indeed,
during the hearing Thomas' attorney acknowledged 24
months was the maximum sentence his client could receive.
noted in Footnote 1, supra, an ongoing debate exists
as to whether Fed. R. Crim. P. 35(a) is available to
defendants challenging a prison term imposed after revocation
of a supervised release. See United States v.
Winfield, 665 F.3d 107, 114 (4th Cir. 2012) (“Case
law varies on whether Rule 35(a) applies in the context of
correcting an error as it pertains to a term of supervised
release or whether § 3583(e) independently
governs.”); United States v. Vargas, 564 F.3d
618, 623 (2d Cir. 2009) (“We need not decide whether
Federal Rules of Criminal Procedure 35(a) and 36 authorized
the district court to issue the March 2008 judgment because
18 U.S.C. § 3583(e) independently governs extensions of
supervised release and corrections to sentences relating to
supervised release.”). The Court assumes, without
deciding, Fed. R. Crim. P. 35(a) is available.
has not demonstrated the Court committed clear error when it
sentenced Thomas to the custody of the United States Bureau
of Prisons for a term of 24 months. Accordingly, the motion