United States District Court, S.D. New York
June 13, 2005.
UNITED STATES OF AMERICA,
SHAWNE FORDEN, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
Defendant Shawne Forden ("Forden") has petitioned under
Fed.R.Crim.P. 36 for reduction of his sentence pursuant to
18 U.S.C. § 3621 (e) (2) (B). The petition is denied.
On April 3, 2003, Forden pleaded guilty before former Judge
Martin to a one-count indictment charging him with possession of
a firearm after a prior felony conviction, in violation of
18 U.S.C. § 922(g). On August 28, 2003, I sentenced Forden to a term
of imprisonment of 33 months, to be followed by two years'
supervised release. Forden currently is serving his sentence at
Forden contends that the Court intended him to receive a
sentence reduction incentive pursuant to 18 U.S.C. § 3621 (e) (2)
(B). (Motion ¶ 3). This statute authorizes the Bureau of Prisons
("BOP") to reduce by up to one year the period of incarceration
of a prisoner who has been convicted of a non-violent offense,
upon the prisoner's successful completion of a substance abuse training program. Forden completed a program, but
he was denied the sentence reduction because his offense involved
a crime of violence under BOP regulations. (Motion, Exh. A).
Forden contends that this Court intended for him to receive the
sentence reduction incentive (Motion ¶ 3), and that "ambiguity or
omission in the Judgment and Commitment Order" led to the denial
of the reduction. (Motion ¶ 4). He moves pursuant to
Fed.R.Crim.P. 36 for correction of the Judgment and Order of
Commitment and for an order requiring the BOP to afford him the
sentence reduction incentive under Section 3621 (e) (2) (B).
Fed.R.Crim.P. 36 provides that upon appropriate notice, "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." Forden makes no
showing of an error in the Judgment or Order of Commitment. At no
time during the sentencing hearing did the Court, or either
counsel, suggest that Defendant was entitled to a Section 3621
(e) (2) (B) sentence reduction. Defense counsel merely requested
that the Court sentence Forden "to a facility with a drug
program." (Tr. at 18).*fn1 Counsel noted that such a program
could be "valuable both for supervised release and his future." (Id.). Counsel concluded, "I would ask that the Court order
that as part of whatever sentence is imposed." The Court
responded: "I will do so." (Id.). The Court made no statement
connecting participation in a drug program with a sentence
The Court's imposition of the sentence also was clear. The
Court said simply: "[I]t is adjudged that the defendant be
committed to the custody of the Attorney General of the United
States or his authorized representative for a term of 33 months.
I direct that the defendant be institutionalized in an
institution where he can receive drug rehabilitation treatment or
a drug program for the drug problem he suffers from." (Tr. at
21). The Court's concern clearly was Forden's addiction, not
Forden's 33-month sentence fell at the bottom of the applicable
Guidelines range. Before imposing this sentence, the Court
rejected several requests for downward departures. (Tr. at
19-21). In so doing, the Court never hinted that it would have
imposed a lower sentence had it realized that Forden was
ineligible for a reduction under Section 3261 (e) (2) (B). The
record provides no basis for inferring that the Court, or anyone
else for that matter, considered Section 3621(e) (2) (B) at all.
Even assuming arguendo that the Court intended the sentence
reduction provision to apply, Rule 36 "authorizes a court to
correct only clerical errors in the transcription of judgments, not to effectuate its unexpressed intentions at the
time of sentencing." United States v. Werber, 51 F.3d 342, 343
(2d Cir. 1995); see also United States v. Burd, 86 F.3d 285,
288 (2d Cir. 1996) ("[A] clerical error must not be one of
judgment or even of misidentification, but merely of recitation,
of the sort that a clerk . . . might commit, mechanical in
nature."). Forden asks for a change of sentence, not a
correction. The Court lacks authority under Rule 36 to grant him
Accordingly, there is no need for the Court to delve into the
question of whether the BOP properly denied Forden's request for
the sentence reduction under Section 3621 (e) (2) (B). The Court
points out that the BOP regulation at 28 C.F.R. § 550.58(a) (1)
(vi) (B) provides that inmates whose offense was a felony "[t]hat
involved the carrying, possession, or use of a firearm" are not
eligible for early release. See Lopez v. Davis, 531 U.S. 230
(2001) (holding the regulation a permissible interpretation of
Section 3621 (e) (2) (B)).
In light of the foregoing, Forden's Rule 36 motion for a
correction of the Judgment and Order of Commitment is denied.