United States v. Gutierrez

Filing 920101108

Opinion

U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT

U n i t e d States Court of Appeals T e n t h Circuit

FILED

N o v e m b e r 8, 2010

E l i s a b e t h A. Shumaker C l e r k of Court

U N I T E D STATES OF AMERICA, P l a i n t i f f - Appellee, v. P E T E R ANTHONY GUTIERREZ, D e f e n d a n t - Appellant. N o . 10-5086 ( D . C . No. 4:95-CR-00152-TCK-1) ( N . D . Okla.)

O R D E R AND JUDGMENT * B e f o r e KELLY, EBEL, and LUCERO, Circuit Judges. ** D e f e n d a n t - A p p e l l a n t Peter Anthony Gutierrez, a federal inmate appearing p r o se, appeals from the district court's denial of his motion to correct an error in h i s judgment and sentence. Fed. R. Crim. P. 36. He contends that his federal s e n t e n c e should run concurrently with his later-imposed state sentence. Our j u r i s d i c t i o n arises under 28 U.S.C. § 1291 and we affirm.

This order and judgment is not binding precedent, except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th C i r . R. 32.1. After examining the briefs and the appellate record, this three-judge p a n e l has determined unanimously that oral argument would not be of material a s s i s t a n c e in the determination of this appeal. See Fed. R. App. P. 34(a); 10th C i r . R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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Background I n 1996, Mr. Gutierrez pleaded guilty to possession of firearms after a f e l o n y conviction (count one) and possession of stolen firearms (count two). 1 R. 1 9 . In September 1996, the district court sentenced Gutierrez to imprisonment for c o n s e c u t i v e terms of 120 months on count one and 115 months for count two, t o t a l i n g 235 months. 1 R. 19. The following month, a state judge sentenced Mr. G u t i e r r e z to five years imprisonment for knowingly concealing stolen property a n d stated that his state sentence should run concurrently to his previously i mp o s e d federal sentence. 1 Supp. R. 18. Apparently Mr. Gutierrez began s e r v i n g his state sentence, was paroled on the state of Oklahoma conviction in 1 9 9 8 , then began serving his federal sentence. 1 Supp. R. 24, 32. Mr. Gutierrez a p p e a l e d his federal sentence (but not on the grounds he now raises) and we a f f i r me d . United States v. Gutierrez, 1997 WL 375342 (10th Cir. July 8, 1997) (unpublished). M r . Gutierrez has previously attempted to challenge the consecutive o p e r a t i o n of his federal and state sentences, first in a 2005 motion to amend the j u d g me n t and then in a 2010 letter to the court, both of which were dismissed for l a c k of jurisdiction. 1 Supp. R. 31-34; 1 Supp. R. 45-46. On June 7, 2010, Mr. G u t i e r r e z filed the instant Rule 36 motion contending the district court intended t h a t his federal and states sentences be served concurrently and that the omission o f this intent from the record was a clerical error to be corrected. 1 R. 40. The -2-

d i s t r i c t court denied this motion on July 1, 2010. 1 R. 40. This appeal followed.

Discussion U n d e r 18 U.S.C. § 3584(a), terms of imprisonment imposed at different t i me s run consecutively absent the court ordering concurrent terms. United States v . Williams, 46 F.3d 57, 59 (10th Cir. 1995) (citation omitted). "[T]he d e t e r mi n a t i o n of whether a defendant's `federal sentence would run consecutively t o his state sentence is a federal matter which cannot be overridden by a state c o u r t provision for concurrent sentencing on a subsequently-obtained state c o n v i c t i o n . ' " United States v. Eccleston, 521 F.3d 1249, 1254 (10th Cir. 2008) ( q u o t i n g Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991)). Mr. Gutierrez asserts that a statement made by the federal sentencing judge d e mo n s t r a t e s the intention of the federal court that his federal and state sentences r u n concurrently. Aplt Br. 4. But the statement in question, as the district court e x p l a i n e d , 1 R. 40, was not made in regard to the duration of the sentence i mp o s e d but rather followed imposition of the sentence and responded to defense c o u n s e l ' s concern that Mr. Gutierrez receive credit for time served: M r . Bryant: Your Honor, I'm not sure if the Court record r e f l e c t s this or maybe Mr. Burton can help us out on this. Mr. G u t i e r r e z was originally­and I apologize for bringing this up at the l a s t minute, but Mr. Gutierrez was originally charged in state court a n d then he was eventually indicted in federal court. At some point, h i s custody was removed from state custody over to federal custody a n d I just want to make sure that he gets credit for all of the time he -3-

h a s been in federal custody. M r . Kirkpatrick: Your Honor, that's a determination to be ma d e by the Bureau of Prisons. We're [confident] he will get credit f o r every day he served. T h e Court: Well, it is a determination to be made by the B u r e a u of Prisons, but I would certainly, for whatever good it may d o , whatever­to what extent they would listen to me, it's obvious t h a t all of this time should be credited if these were the same charges a n d he's been in custody over these same charges, both in state and f e d e r a l and it should all count. 2 Supp. R. 110-11. W e have yet to determine the standard of review for Rule 36 motions. See U n i t e d States v. Simon, 36 Fed. App'x 415, 416 (10th Cir. 2002) (unpublished) ( c i t i n g United States v. Hayden, 10 Fed. Appx. 647, 649 (10th Cir. 2001) ( u n p u b l i s h e d ) ; United States v. Sides, 1994 WL 38640, *2 (10th Cir. Feb. 10, 1 9 9 4 ) (unpublished)). Regardless, Rule 36 does not empower a court to s u b s t a n t i v e l y modify a sentence. United States v. Blackwell, 81 F.3d 945, 948 n . 3 (10th Cir. 1996). Accordingly, the district court did not err in denying the mo t i o n . AFFIRMED. E n t e r e d for the Court P a u l J. Kelly, Jr.

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