George William Hall v. United States of America

Filing 8

MINUTE ORDER IN CHAMBERS by Judge David O. Carter: ORDER DENYING PETITIONERSMOTION TO CORRECT ERROR IN JUDGMENT AND COMMITMENT ORDER. For the foregoing reasons, the Court DENIES Petitioners Motion to Correct Error in Judgment and Commitment Order 1 . (Made JS-6. Case Terminated.) (twdb)

JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

O

CIVIL MINUTES – GENERAL

Case No. SACV 11-1005 DOC

Date: August 22, 2012

Title: GEORGE WILLIAM HALL V. UNITED STATES OF AMERICA

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER’S
MOTION TO CORRECT ERROR IN
JUDGMENT AND COMMITMENT
ORDER
Before the Court is pro se Petitioner George William Hall’s Motion to Correct
Error in Judgment and Commitment Order (“Motion”). (Dkt. 1.) After reviewing the
motion and opposition, and for the reasons stated below, the Court DENIES Petitioner’s
Motion.1
I.
Background
On September 11, 2006, this Court sentenced George William Hall (“Petitioner”)
to 97 months imprisonment after Petitioner pled guilty to conspiracy and conspiracy to
launder monetary instruments. (Case No. SACR 5-34 DOC-3, Dkt. 495.) The Petitioner
filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on
October 9, 2007 (Case No. SACV 7-1158 DOC, Dkt. 1.) The Order denying the motion
was entered on June 6, 2009. (Case No. SACV 7-1158 DOC, Dkt. 11.)
On July 11, 2011, Petitioner filed the present Motion. The Petitioner claims that
the 97-month sentence is an error because the sentence does not reflect that the Court
1

The Court finds the matter appropriate for decision without oral argument. Fed R. Civ.
P. 78; Local R. 7-15.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1005 DOC

Date: August 22, 2012
Page 2

granted two months of “extra credit” for self-surrender and a twelve-month reduction for
enrollment in the Bureau of Prison’s Residential Drug Abuse Treatment Program
(“RDAP”), which would have reduced the sentence by 14 months. The Petitioner bases
his Motion on the following statements made by the Court at the sentencing hearing: (1)
“Now, by self-surrendering that’s going to give you about two months of extra credit”;
and (2) “I’m going to put the Bureau of Prisons on alert that I want you in that program.
That will give you 12 more months of a reduced sentence.” (Decl. of Pet’r, Dkt. 3, Ex.
A.)
The Government’s Opposition (“Opposition”) states the Court’s judgment from
the sentencing hearing: “[Petitioner], is hereby committed…to the custody of the Bureau
of Prisons to be imprisoned for a term of 97 months, which is the lowest term in that
range.” (Opp., Dkt. 7, 8:3-8:6.) The 97-month sentence is accurately reflected in the
Judgment and Commitment Order. (Opp., Ex. C.)
II.

Discussion
a. Petitioner is not entitled to relief pursuant to Rule 36.

The Petitioner argues that his 97-month sentence should have been reduced by 14
months because he self-surrendered and enrolled in RDAP. The Petitioner seeks relief
pursuant to Federal Rules of Criminal Procedure 36, which states that “the 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.
“Rule 36 is limited to errors that are clerical in nature, typically where the written
sentence differs from the oral pronouncement of the sentence, not judicial mistake.”
United States v. Johnson, 571 F.3d 716, 718 (7th Cir. 2009) (citations omitted). See also,
United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006) (“A district judge may still
correct a final judgment in a criminal case to reflect the sentence he actually imposed but
he cannot change the sentence he did impose even if the sentence was erroneous.”);
United States v. Kaye, 739 F.2d 488, 490 (9th Cir.1984) (“A change made under
Fed.R.Crim.P. 36 can do no more than conform the sentence to the term which the record
indicates was intended.”).
The Petitioner offers no evidence of clerical error or an error of the record, as the
sentence received and properly recorded was 97 months. The sentencing hearing record

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1005 DOC

Date: August 22, 2012
Page 3

states: “it is the judgment of this Court that the [Petitioner] is hereby committed …to the
custody of the Bureau of Prisons to be imprisoned for a term of 97 months, which is the
lowest term in that range.” The Petitioner has not offered evidence that the hearing was
inaccurately recorded or the sentencing order does not match the hearing record.
The Court’s statements regarding self-surrender and RDAP enrollment are not a
basis for a sentence reduction under Rule 36. Even assuming those statements made the
Petitioner entitled to reduce his 97-month sentence by 14 months, the Court’s failure to
reduce the 97-month sentence would be a judicial error, not the clerical error that Rule 36
addresses. As the type of error Petitioner alleges does not qualify as a clerical error under
Rule 36, the Court DENIES Petitioner’s Motion.
b. Petitioner is not entitled to a second 28 U.S.C. § 2255 motion.
Alternatively, to the extent that Petitioner’s Motion could be construed as a motion
under 28 U.S.C. § 2255 to correct a sentence due to judicial error, such relief is not
available because this would be Petitioner’s second such motion. “A second or successive
motion must be certified as provided in section 2244 by a panel of the appropriate court
of appeals to contain” newly-discovered exculpatory evidence or a new retroactive
constitutional law. 28 U.S.C. § 2255(h). There is nothing in the record to indicate
Petitioner has taken the proper steps to seek an order from the appropriate court of
appeals authorizing the district court to consider the application. See 28 U.S.C. §
2244(b)(3)(A). Furthermore, the motion does not claim there is relevant newlydiscovered evidence or an applicable new rule of constitutional law. To the extent that
Petitioner’s motion could be construed as brought under § 2255, it is DENIED.
c. Petitioner may still be eligible for a reduction in sentence.
Finally, if the Petitioner is enrolled in the RDAP, there is still a possibility of a
sentence reduction–but not through litigation, rather through the BOP. Pursuant to 18
U.S.C. § 3621, “[t]he period a prisoner convicted of a nonviolent offense remains in
custody after successfully completing a treatment program may be reduced by the Bureau
of Prisons, but such reduction may not be more than one year from the term the prisoner
must otherwise serve.” 18 U.S.C. § 3621(e)(2). Successful completion is determined by
the Director of the BOP. 18 U.S.C. § 3621(e)(1). Thus, although the Petitioner has not

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1005 DOC

Date: August 22, 2012
Page 4

presented a reason for the Court to alter the sentence, the Court’s order does not prevent
Petitioner from seeking a reduction in sentence from the BOP.
IV. Disposition
For the foregoing reasons, the Court DENIES Petitioner’s Motion to Correct Error
in Judgment and Commitment Order.
The Clerk shall serve a copy of this minute order on counsel for all parties in this
action.
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: jcb