Filed: Jul. 19, 2019
Latest Update: Jul. 19, 2019
Summary: ORDER JAMES C. MAHAN , District Judge . Presently before the court is the matter of USA v. Warmack, case no. 2:18-cr-00201-JCM-CWH. On July 3, 2019, the court sentenced defendant Necester Warmack ("defendant") to twelve (12) months and one (1) day of imprisonment for the crime of escape from custody, in violation of 18 U.S.C. 751(a). (ECF No. 47). The court issued its final judgment on July 8, 2019. (ECF No. 48). On July 16, 2019, defendant filed an unopposed motion to amend judgment
Summary: ORDER JAMES C. MAHAN , District Judge . Presently before the court is the matter of USA v. Warmack, case no. 2:18-cr-00201-JCM-CWH. On July 3, 2019, the court sentenced defendant Necester Warmack ("defendant") to twelve (12) months and one (1) day of imprisonment for the crime of escape from custody, in violation of 18 U.S.C. 751(a). (ECF No. 47). The court issued its final judgment on July 8, 2019. (ECF No. 48). On July 16, 2019, defendant filed an unopposed motion to amend judgment t..
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ORDER
JAMES C. MAHAN, District Judge.
Presently before the court is the matter of USA v. Warmack, case no. 2:18-cr-00201-JCM-CWH.
On July 3, 2019, the court sentenced defendant Necester Warmack ("defendant") to twelve (12) months and one (1) day of imprisonment for the crime of escape from custody, in violation of 18 U.S.C. § 751(a). (ECF No. 47). The court issued its final judgment on July 8, 2019. (ECF No. 48).
On July 16, 2019, defendant filed an unopposed motion to amend judgment to include a recommendation that he serve his sentence "in either Tallahassee FCI or Coleman FCC so that he may be close to his family in Florida." (ECF No. 49). Defendant's motion must be denied.
"[A] district court does not have inherent power to resentence defendants at any time. Its authority to do so must flow either from the court of appeals mandate . . . or from Federal Rule of Criminal Procedure 35." United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997) (citation omitted); see United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir. 1994) ("The authority to change a sentence must derive from some federal statutory authority."); United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (same).
Under Rule 35, a district court may "correct a sentence that resulted from arithmetical, technical, or other clear error" within fourteen days of imposing the sentence. Fed. R. Crim. P. 35(a). No such error was made here. Defendant admits in his motion that he "neglected to request a recommendation from this [c]ourt regarding the facility in which he would serve his sentence." (ECF No. 49). This is not the type of error that Rule 35 was designed to correct. See United States v. Penna, 319 F.3d 509, 513 (9th Cir. 2003) ("Rule 36 is a vehicle for correcting clerical mistakes but it may not be used to correct judicial errors in sentencing.") (emphasis in original).
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant's motion to amend or correct sentence (ECF No. 49) be, and the same hereby is, DENIED.
IT IS SO ORDERED.
