United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
defendant has filed a motion for sentence correction. (Doc.
34). For reasons discussed below, the motion is due to be
judgment once entered cannot be modified except as provided
by 18 U.S.C. § 3582(c). A motion to correct sentence can
be pursued only in compliance with Rule 35, id.
§ 3582(c)(1)(B), and the defendant's motion falls
outside the scope of that rule.
35(a) permits a court to “correct a sentence that
resulted from arithmetical, technical, or other clear error,
” but only “[w]ithin 14 days after
sentencing.” After that date, the trial court loses all
power to act under Rule 35(a). E.g., United States v.
Phillips, 597 F.3d 1190, 1197 (11th Cir.
2010); United States v. Diaz-Clark, 292 F.3d 1310,
1317 (11th Cir. 2002); United States v.
Morrison, 204 F.3d 1091, 1094 (11th Cir.
2000). The defendant was sentenced on July 30, 2019, (Doc. 31
at 1), and the instant motion was not filed until October 24,
2019, some 86 days later. Relief under Rule 35(a) is thus
barred by the passage of time.
allows a court “at any time” to “correct a
clerical error in a judgment …, or correct an error in
the record arising from oversight or omission.” There
is thus no deadline for filing such a motion. However,
“Rule 36 … cannot be used … to make a
substantive alteration to a criminal sentence.”
United States v. Pease, 331 F.3d 809, 816
(11th Cir. 2003). The defendant seeks a reduction
of his sentence from 57 months to 20 months, which would be
very much a substantive alteration. Had the Court orally
imposed a 20-month sentence and the written judgment
inconsistently reflected a 57-month sentence, the judgment
could be amended as a clerical error. United States v.
Portillo, 363 F.3d 1161, 1164-65 (11th Cir.
2004). Because the Court intended to pronounce, and did
pronounce, a 57-month sentence, there is no clerical error
and Rule 36 is not in play.
could the defendant's motion be considered on its merits,
it would fail. He identifies error based on: (1) United
States v. Rehaif, 139 S.Ct. 2191 (2019); (2) United
States v. Crumpton, 88 F.Supp.3d 796 (E.D. Mich. 2015),
rev'd in part, 824 F.3d 593 (6th Cir.
2016); and (3) United States v. Davis, 139 S.Ct.
2319 (2019). None aids his cause.
defendant was charged in a one-count indictment as a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). The indictment charged that the defendant, after
being convicted of a felony, knowingly possessed the firearm.
(Doc. 1). Upon conviction, he was subject to a prison term of
up to ten years, (Doc. 1-1), pursuant to 18 U.S.C. §
924(a)(2), which provides such a term for “[w]hoever
knowingly violates subsection … (g).”
April 16, 2019, the defendant entered a blind plea of guilty.
(Doc. 20). At his plea hearing, the defendant acknowledged
that one element of his offense was that he knowingly
possessed a firearm and that another element was that, prior
to that time, he had been convicted of a felony. (Doc. 21 at
16). With this awareness, he pleaded guilty to the charge.
(Id. at 18). He also admitted the facts surrounding
the charge, viz., that he had a Glock in the trunk
of his vehicle as he drove through Selma. (Id. at
conclude that in a prosecution under 18 U.S.C. § 922(g)
and § 924(a)(2), the Government must prove both that the
defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possessing a firearm.” Rehaif, 139 S.Ct. at
2199. Because the defendant pleaded guilty, the government in
this case was not required to prove anything. Moreover, the
defendant pleaded guilty to the crime charged in the
indictment, which alleged that he “did knowingly
possess” the firearm. While the indictment did not
expressly charge that the defendant knew he was a felon, and
while the defendant at his plea hearing did not expressly
admit he knew he was a felon,  he could not possibly have denied
such knowledge, given that he was imprisoned from 2005 to
2008 for manslaughter and from 2013 to 2015 for first degree
assault. (Doc. 26 at 6).
possession of the premises, without more, cannot establish
constructive possession over contraband found within the
premises.” Crumpton, 88 F.Supp.3d at 810. This
may be so for purposes of proof at a criminal trial (as in
Crumpton), but it is irrelevant in this case,
because the defendant pleaded guilty and affirmatively
admitted both possession and knowing possession of the
defendant was sentenced to the low end of the guideline
range. His base offense level of 26 was gleaned from Section
2K2.1(a)(1) of the Sentencing Guidelines, which provides for
that level if the defendant has two felony convictions for a
“crime of violence.” (Doc. 26 at 4).
Davis held that Section 924(c)(3)(B) of Title 18,
which defines a “crime of violence” as a felony
offense “that by its nature, involves a substantial
risk that physical force against the person or property of
another may be used in the course of committing the offense,
” is “unconstitutionally vague.” 139 S.Ct.
at 2336. The defendant would apply Davis to Section
2K2.1(a)(1). However, “the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause.” Beckles v. United States,
137 S.Ct. 886, 895 (2017). “Therefore, Davis
has no application to U.S.S.G. § 2K2.1(a)
….” In re: Navarro, 931 F.3d 1298, 1303
(11th Cir. 2019).
reasons set forth above, the defendant's motion for
sentence correction is denied.