United States District Court, S.D. Alabama, Southern Division
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on defendant Robert Perkins'
Motion to Correct a Sentence pursuant to Rule 35(a) (Criminal
Action No. 00-00123-KD-N (doc. 126); Criminal Action No.
04-00103-KD-N (doc. 89). Perkins moves the Court, pursuant to
Rule 35(a) of the Federal Rules of Criminal Procedure, to
correct his federal sentence. He also moves the Court,
pursuant to the First Step Act, to recalculate his good time
credit under the First Step Act, Pub. L. No. 115-391 (2018).
has been intermittently imprisoned since 1993. In June 1993,
he was convicted and sentenced for the offenses of postal
theft and forgery. See United States v. Perkins,
93-cr-00031-AH-C (S.D. Ala. 1993). In 1995, his term of
supervised release was revoked and he served eight months. In
2000, Perkins was again convicted and sentenced for similar
offenses - theft of mail, conspiracy to possess stolen mail,
forgery. See United States v. Perkins,
00-cr-00032-KD-N (S.D. Ala. 2000) and United States v.
Perkins, 00-cr-00123-KD-N (S.D. Ala. 2000). He was
released in April 2004.
was serving his term of supervised release when he committed
the offense of theft or receipt of stolen mail. In November
2004, he was convicted and sentenced to 46 months in prison
and 36 months of supervised release. See United States v.
Perkins, 04-cr-00103-KD-N (S.D. Ala. 2004). Also, in
00-cr-00032-KD-N, Perkins was revoked and sentenced to 24
months, concurrent with 00-cr-00123-KD-N, but consecutive to
the sentence in 04-cr-00103-KD-N. In 00-cr-00123- KD-N,
Perkins was revoked and sentenced to 27 months, concurrent
with 00-cr-00032-KD-N, but consecutive to the sentence in
December 2009, he began serving his 36 months of supervised
release. However, Perkins violated his conditions by
absconding supervision and a warrant issued in January 2010.
Perkins was arrested in July 2010, he was revoked in August
2010, and sentenced to 24 months with no supervised release
2010, during the time between absconding and arrest, Perkins
committed similar offenses - theft or receipt of stolen mail
(debit card and driver's license) and making and
possessing forged checks. He was convicted and sentenced in
February 2011, to a term of 72 months, consecutive to the
24-month revocation sentence imposed in 04-cr-00103-KD-N,
with 36 months of supervised release to follow. United
States v. Perkins, 10-cr-00212-JB-C (S.D. Ala. 2010). In
August 2017, Perkins was again released on supervision.
However, in September 2018, his term of supervised release
was revoked and he was sentenced to 24 months, with no
supervised release to follow. Perkins is presently serving
now moves the Court to correct his November 2004 revocation
sentence in 00-cr-00123-KD-N. Perkins alleges that the Court
gave him a “‘stacked' term of 27 months
supervised release, when the ‘statutory maximum'
should only carry a maximum term of supervised release of 24
months” (docs. 126, 89, p. 2-3). Although Perkins
refers to the 27 months as a term of supervised release, he
seems to argue that the 27-month sentence should have been 24
months, pursuant to the Sentencing Guidelines for the type of
felony offense committed.
moves pursuant to Rule 35(a). The Rule provides that
“[w]ithin 14 days after sentencing, the court may
correct a sentence that resulted from arithmetical,
technical, or other clear error.” Fed. R. Crim. P.
35(a). The Court of Appeals for the Eleventh Circuit has held
that the 14-day time period during “which a district
court may act to correct a sentence is jurisdictional”.
United States v. Fawcett, 522 Fed.Appx. 644, 652
(11th Cir. 2013). Perkins was sentenced in November 2004. The
14-day time period has long passed. Therefore, the Court does
not have jurisdiction to address Perkin's motion.
Accordingly, the Rule 35(a) Motion is DISMISSED for lack of
also moves the Court to “make a ruling that he would be
considered eligible to receive … the seven day per
year retroactive … good time that all federal bureau
of prisons inmates are now going to receive” pursuant
to the First Step Act (docs. 126, 89, p. 6). Perkins states
that since he entered the federal prison system in June 1993
(and has been imprisoned intermittently since that time) he
would have 180 days that could be applied to the 24-month
revocation sentence that he is now serving.
First Step Act directs the Attorney General acting through
the Director of the Bureau of Prisons to take certain actions
regarding the calculation of good time credit for federal
prisoners, including determinations of eligibility.
See 18 U.S.C. § 3632; 18 U.S.C. § 3624.
The Act did not give the federal courts authority to make
eligibility determinations or calculate the good time credit.
See United States v. Kamber, 2019 WL 399935, at *2
(S.D. Ill. Jan. 31, 2019) (slip copy) (“To the extent
the defendant asks the Court to order other relief under the
First Step Act such as, for example, additional sentence
credit, the Bureau of Prisons will determine how to implement
those portions of the act. Should the defendant dispute that
determination, he may then file a lawsuit after exhausting
administrative remedies.”). Accordingly, Perkins'
Motion is DISMISSED for lack of jurisdiction.