United States v. Pennington, 2:19CR00006-001. (2020)
Court: District Court, W.D. Virginia
Number: infdco20200225e37
Visitors: 6
Filed: Feb. 24, 2020
Latest Update: Feb. 24, 2020
Summary: OPINION AND ORDER JAMES P. JONES , District Judge . The defendant, sentenced by this court on February 7, 2020, has filed a pro se motion seeking to correct his sentence under Federal Rule of Criminal Procedure 35(a). He contends that the court committed clear error in calculating his Criminal History Category because one of the prior sentences used to calculate that category had been found to be attributable to someone else, and not him. Even if Rule 35(a) could be used to correct the def
Summary: OPINION AND ORDER JAMES P. JONES , District Judge . The defendant, sentenced by this court on February 7, 2020, has filed a pro se motion seeking to correct his sentence under Federal Rule of Criminal Procedure 35(a). He contends that the court committed clear error in calculating his Criminal History Category because one of the prior sentences used to calculate that category had been found to be attributable to someone else, and not him. Even if Rule 35(a) could be used to correct the defe..
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OPINION AND ORDER
JAMES P. JONES, District Judge.
The defendant, sentenced by this court on February 7, 2020, has filed a pro se motion seeking to correct his sentence under Federal Rule of Criminal Procedure 35(a). He contends that the court committed clear error in calculating his Criminal History Category because one of the prior sentences used to calculate that category had been found to be attributable to someone else, and not him.
Even if Rule 35(a) could be used to correct the defendant's sentence for the reason stated, the defendant is incorrect in his assumption. It is true that the Probation Officer initially attributed the prior sentence in question to the defendant in the first version of the Presentence Investigation Report (PSR) released to the parties, but upon objection by the defendant's counsel, the Probation Officer corrected the report, as noted in his Addendum to the PSR, and the final version of the PSR received by the court before the sentencing hearing did not contain the prior sentence in question. Thus, the sentence complained of was not counted in the scoring of the defendant's Criminal History Category.1
For these reasons, it is ORDERED that the defendant's motion, ECF No. 795, is DENIED.
FootNotes
1. As noted in the Addendum to the PSR, the defendant objected to former paragraph 341, stating that the defendant was not convicted of shoplifting "as it was Travis M. Pennington, not the defendant Travis Lee Pennington." PSR Addendum, ECF No. 749. The Probation Officer replied, "After checking the court records, the defendant is correct and said conviction will be removed from the report." Id. No shoplifting conviction was used to calculate the defendant's Criminal History Category.
Source: Leagle
