United States District Court, S.D. New York
EDGARDO RAMOS, U.S.D.J.
the Court is defendant's motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e)
and Local Civil Rule 6.3. Doc. 57. For the reasons set forth
below, the motion is denied.
March 14, 2014, the defendant pleaded guilty pursuant to a
plea agreement with the government to a superseding
information charging him with two counts of possessing with
intent to distribute oxymorphone in July 2011 and October
2011, respectively, in violation of 21 U.S.C. §§
812, 841(a)(1), 841(b)(1)(c) and 841(b)(2). The charges
stemmed from the overdose deaths of Austin O'Farrell, age
20, and William Raftery, age 21, in Pearl River, New York in
July 2011 and October 2011, respectively. Presentence
Investigation Report (“PSR”) at ¶ 8. In a
consensually recorded conversation between a confidential
informant working with the Drug Enforcement Administration
and the defendant, the defendant admitted to supplying to the
informant the oxymorphone pills that were involved in the
Raftery and O'Farrell overdose deaths. Doc. 47 at 3.
stipulated in the plea agreement, both deaths resulted from
the ingestion of the oxymorphone pills illegally distributed
by the defendant. As further stipulated in the plea
agreement, a base offense level of 38 applied to each count
of conviction pursuant to U.S.S.G. § 2D1.1(a)(2),
because he was convicted under 21 U.S.C. § 841(b)(1)(C),
and the offense of conviction established that death resulted
from the use of the substance. The PSR contained the same
guidelines calculations stipulated to by the parties in the
plea agreement, resulting in an advisory guidelines range of
210 to 262 months' imprisonment.
defendant was sentenced on April 23, 2014. At the sentencing,
his counsel stated on the record that he did not object to
the factual accuracy of the PSR or to the guidelines
calculation contained therein. See Sentencing Tr. at 3. The
Court found that the total offense level was 37-driven by the
deaths of the two victims-and that the defendant was in
Criminal History Category I, resulting in an advisory
Guidelines range of 210 to 262 months' imprisonment.
Id. at 4. While the government advocated for a
sentence within the guidelines range, the defendant sought a
sentence of no more than 60 months imprisonment on each count
of conviction, to run concurrently. The Court sentenced the
defendant principally to 120 months on each count, to run
concurrently. On April 30, 2014, the Court entered the final
judgment. The defendant did not appeal his sentence.
instant motion was filed more than a year later, on September
8, 2015. In it, the defendant argues-contrary to what he
stipulated to in his plea agreement with the government, and
as provided in the PSR, whose factual accuracy he did not
dispute-that the finding that his distribution of oxymorphone
resulted in the deaths of the two individuals was error. For
the reasons set forth below, the Court finds that it has not
the jurisdiction or authority to grant defendant the relief
he is seeking.
preliminary matter, and as noted by the government, the
defendant has brought this motion as one for relief under
Fed.R.Civ.P. 59(e) and Local Civil Rule 6.3. The Federal and
Local Civil Rules, of course, are inapplicable to a criminal
case such as this. Reviewing a pro se litigants papers with
leniency, as the Court is required to do, the motion will be
construed as one for relief under Rules 35 and 36 of the
Federal Rules of Criminal Procedure.
only avenues for reconsideration of a sentence by a district
court are Federal Rules of Criminal Procedure 35 and 36.
See United States v. Spallone, 399 F.3d 415, 421 (2d
Cir. 2005); see also Id. (“courts are
prohibited from altering a judgment that is clear on its
face”); Fairley v. U.S. 2011 WL 1097537
(S.D.N.Y. 2011). Rule 35(a) permits a court to correct an
arithmetical, technical or clear error, but only within
fourteen days after sentencing. Fed R. Crim. P. 35(a). It is
firmly established in the Second Circuit that the 14 day
period set forth in Rule 35 is jurisdictional. United
States v. Sarvestani, 297 F.R.D. 228, 229 (S.D.N.Y.
2014) (citing United States v. Abreu-Cabrera, 64
F.3d 67, 73 (2d Cir. 1995)) (internal quotation marks and
alterations omitted). “Accordingly, a district court
lacks jurisdiction to correct a sentence after the
fourteen-day period set forth in Rule 35(a) has expired, even
where the motion seeking relief is timely filed.”
Id. (citations omitted); U.S. v. Munoz,
2014 WL 2566263 (E.D.N.Y. 2014) (same). Because the defendant
filed the instant motion more than one year after his
sentence, well beyond the 14-day time limit, the Court has no
jurisdiction to correct his sentence pursuant to Rule 35(a).
Rule 35, Rule 36, allows a court to correct a technical error
in a judgment “at any time.” Fed. R. Crim. P. 36.
However, it covers only “clerical” errors, and
does not provide a court with jurisdiction to “correct
an alleged error committed by the judge at sentencing,
regardless of whether that correction is designed to
vindicate an unstated assumption of the sentencing
court.” See United States v. Werber, 51 F.3d
342, 349 (2d Cir. 1995); Marmolejos v. U.S., 789
F.3d 66, 70 (2d Cir. 2015) (“Rule 36 applies only to
clerical mistakes and errors in the record; it does not
authorize substantive alteration of a final judgment.”)
(citation omitted). United States v. DeMartino, 112
F.3d 75, 79 (2d Cir. 1997) (Rule 36 allows a court to fix a
clerical error in the written judgment, but not to amend the
oral judgment “to effectuate an intention that the
court did not express in its oral sentence.”) (citing
Werber, 51 F.3d at 343).
is now alleging-over a year after his conviction became
final-that the Court committed error when it found that his
illegal distribution of oxymorphone pills resulted in the
overdose deaths of two individuals. As the government
correctly argues, this alleged error is not
“clerical” in nature; it is clearly substantive
and indeed, the primary driver of the guidelines calculation.
In fact, the defense sentencing submission stressed that the
defendant should be considered for a substantial variance
despite the undisputed facts. See. Doc. 45,
passim. Accordingly, Rule 36 cannot provide the
defendant the relief he seeks, and his motion must be
reasons set forth above, the motion is DENIED. The Clerk of
Court is respectfully directed to terminate the motion, Doc.