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United States v. Hankton

United States Court of Appeals, Fifth Circuit

November 16, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
THOMAS HANKTON, also known as Squirt Hankton, Defendant-Appellant UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
DERRICK SMOTHERS, also known as Dump Smothers, Defendant-Appellant UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
TERRELL SMOTHERS, Defendant-Appellant

         Appeals from the United States District Court for the Eastern District of Louisiana

          Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

          HAYNES, Circuit Judge

         When Derrick Smothers, Terrell Smothers, [1] and Thomas Hankton (collectively, "Defendants") were originally sentenced, each received a sentence reduction for previously serving time on related state charges. Thirteen days after sentencing, the Government requested that the district court "correct" their sentences under Federal Rule of Criminal Procedure 35(a) to eliminate those reductions. Because Rule 35(a) may be invoked only "[w]ithin 14 days after sentencing, " the district court had only a day to consider an issue that one Bureau of Prisons ("BOP") attorney labeled "probably the single most confusing and least understood federal sentencing issue."[2] Relying on errant analysis in the Government's briefing, the district court concluded the sentences were "clear error" under Rule 35(a) and "corrected" them to remove the reductions for time served.

         We hold that Defendants' initial sentences were not "clear error" correctable under Rule 35(a). Consequently, we VACATE the order correcting their sentences and REINSTATE the original judgments. We also REMAND for the limited purpose of directing the district court to conform Terrell's written judgment to the oral pronouncement of his sentence.

         I. Background

         Defendants all pleaded guilty to being involved in a criminal organization as well as various other crimes. The exact details of the conspiracy and the nature of the crimes charged are mostly irrelevant to the legal issue before us now. Instead, these appeals center on the fact that each Defendant previously served time in prison for convictions relating to their federal convictions, a fact the Government does not contest. At sentencing, the district court reduced each of Defendants' sentences to reflect their previous time served.

         The Government objected to only Hankton's reduction and on only one narrow ground. Hankton had been convicted on three separate counts. The Government contended that his previous time served should apply to only two of the three counts of conviction. The district court sustained the objection, and Hankton does not appeal that ruling. The Government made no other objections at the sentencing hearing to Defendants receiving reductions for previous time served.

         Thirteen days later, the Government backtracked. It filed a motion to "correct" Defendants' sentences under Federal Rule of Criminal Procedure 35(a). The government argued that under United States v. Wilson, 503 U.S. 329 (1992), "the Attorney General has sole responsibility for calculating the term of imprisonment, including any credit for prior custody." It also argued that Defendants were ineligible for sentencing adjustments under United States Sentencing Guideline Manual ("U.S.S.G.") § 5G1.3(b) (U.S. Sentencing Comm'n 2016), because their terms were not undischarged.[3] Hankton's sentence, the Government argued, also violated his plea agreement which included a stipulated sentence under Federal Rule of Criminal Procedure Rule 11(c)(1)(C).

         Because Rule 35(a) requires that any correction occur within 14 days, the district court and Defendants had to work at breakneck speed. The district court ordered Defendants and the United States Office of Probation and Pretrial Services to submit any responses to the Government's motion by noon the next day. Terrell, Hankton, and Probation all submitted responses, and the Government replied with just hours left on the Rule 35(a) deadline.

         Under this extreme time pressure, the district court granted the Government's motion. It concluded that § 5G1.3(b) did not apply "because [the recommendation] seeks credit for a fully discharged conviction. U.S.S.G. § 5G1.3(b) provides that a district court may effect a downward departure for an undischarged sentence but does not provide for a downward departure for a discharged sentence." See United States v. Hankton, No. 2:12-cr-1-7, slip op. at 3 (E.D. La. Oct. 26, 2016) (alteration in original) (quoting United States v. Carpenter, No. 08-4496, 2009 WL 4981682, at *5 (6th Cir. Dec. 22, 2009)). The district court noted that under binding precedent "only the Attorney General, acting through the Bureau of Prisons, has authority to grant credit for time served under [18 U.S.C. § 3585]." Id. at 4 (citing Wilson, 503 U.S. at 334-35). As a result, the court amended Defendants' sentences to remove any reference to "credit for time served."

         Defendants appealed, each challenging the district court's "correction" of his sentence.

         II. Standard of Review

         "Whether the district court had authority to resentence a defendant pursuant to Rule 35(a) is a question of law that we review de novo." United States v. ...


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