Hodge v. United States of America
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Movant's Motion to Reconsider [ECF No. 23 ] is DENIED. Signed by District Judge E. Richard Webber on April 4, 2013. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 4:11CV00316 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Bradley Hodge’s Motion for Reconsideration of
Movant’s Fed. R. Crim. P. 36 Motion [ECF No. 23].
Bradley Hodge was convicted of three criminal counts related to a conspiracy to
manufacture methamphetamine. The district court sentenced him to three terms of 240 months
imprisonment, to run concurrently. Movant Hodge appealed to the United States Court of
Appeals for the Eighth Circuit, which affirmed in full Movant’s conviction and sentence. On
November 15, 2011, this Court denied Movant’s pro se motion under 28 U.S.C. § 2255, seeking
to vacate, set aside, or correct sentence by a person in federal custody [ECF Nos. 1, 13]. On
November 20, 2012, Movant filed a Motion to amend judgement under Fed. R. Cr. P. 36. [ECF
Nos. 17, 18], which this Court denied on February 20, 2013 [ECF No. 22]. Now, Movant seeks
reconsideration of the Court’s Memorandum and Order denying relief under Fed. R. Crim. P. 36.
A “motion to reconsider” is not explicitly contemplated by the Federal Rules of Civil
Procedure. Typically, courts construe a motion to reconsider as a motion to alter or amend
judgment under Federal Rule of Civil Procedure 59(e), or as a motion for relief from a final
judgment, order, or proceeding under Fed. R. Civ. P. 60(b). This Court's February 20, 2013
Memorandum and Order cannot be classified as a “judgment,” therefore Hodge’s Motion for
Reconsideration does not fall within the parameters of Rule 59(e). However, his Motion for
Reconsideration may be considered pursuant to Rule 60(b), which allows relief from an order
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b); see also Elder–Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (“[W]e
have determined that motions for reconsideration are ‘nothing more than Rule 60(b) motions
when directed at non-final orders.’ ”).
After careful consideration of Movant’s Motion, the Court finds that none of the above
bases for relief under Rule 60(b) were met. Although it is unclear under which 60(b) provision
Movant’s challenge to the Court’s order would fall, Movant argues the Court’s denial of his
Motion under Rule 36 is improper under United States v. Powell. In Powell, the defendant was
improperly sentenced as a career offender under the sentencing guidelines because one of his two
qualifying predicate offenses was based on a clerical error in a state court docket entry of a prior
conviction, which became part of the federal court’s record. 266 Fed. Appx. 263, 264-66 (4th
Cir. 2008). Notably, Powell’s sentence, which was imposed on the basis of the clerical error in
the record, was ten years longer than it should have been. Id. The 4th Circuit remanded the case
to correct the error in the federal court record and to resentence him. Id. First of all, the Court
notes that this case, cited by Movant, is from the Fourth Circuit, and therefore not binding.
Secondly, Powell is distinguishable, as here, Movant does not allege a clerical error which
resulted in a longer sentence for Movant, prejudicing him. Movant contends that the Court failed
to inquire at the sentencing hearing whether he affirmed or denied previous convictions.
However, he fails to establish how his written sentence is itself erroneous or prejudicial due to
the omission of this procedure. Movant seeks a hearing on the merits of his sentence, which is
beyond the scope of the correction of clerical errors contemplated by Fed. R. Crim. P. 36. As the
Court finds that Movant’s arguments are without merit, and not in compliance with Rule 60(b),
Movant’s Motion is denied.
IT IS HEREBY ORDERED that Movant’s Motion to Reconsider [ECF No.23] is
day of April, 2013.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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