United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. TOWNES United States District Judge.
Dontae Sebbern ("Defendant") was tried before this
Court in December 2012 and convicted of all but one of the
nine counts on which he was indicted. Defendant now moves
pursuant to Federal Rule of Criminal Procedure 36 to correct
certain clerical errors in his judgment of conviction. For
the reasons stated below, the motion is granted.
December 2012, Defendant went to trial on an indictment which
charged him with nine counts: racketeering, racketeering
conspiracy, murder in aid of racketeering, conspiracy to
commit murder in aid of racketeering, possession of narcotics
with intent to distribute, conspiracy to distribute cocaine
and cocaine base, being a felon in possession of a firearm,
and two counts of unlawful use of a firearm in furtherance of
a crime of violence. On December 21, 2012, the jury found
Defendant guilty of all counts except one of the counts
charging unlawful use of a firearm. On August 22, 2014, the
Court sentenced him to life imprisonment on each of the three
top counts and to various terms of years on the remaining
five counts. All of the terms of imprisonment were
concurrent, except for the 60-month term of imprisonment
imposed for the use of a firearm.
appealed his conviction. The Second Circuit affirmed
Defendant's conviction on December 16, 2015. United
States v. Sebbern, 641 F.App'x 18 (2d Cir. 2015)
(summary order). Defendant then petitioned the United States
Supreme Court for a writ of certiorari, which was denied on
October 3, 2016. United States v. Sebbern, 137 S.Ct.
280, 196 L.Ed.2d 85 (2016).
letter dated January 29, 2017, which was received and filed
by the Court on February 2, 2017 (Document 188), Defendant
now requests that his judgment of conviction be amended to
correct "clerical errors." Specifically, Defendant
asserts that the "judgment erroneously states that [he]
was adjudicated Guilty on ALL COUNTS" and "was
adjudicated Guilty of 924 (c) ii AND 924 (c) iii, [w]hen in
fact the Court[']s oral announcement and sentence
reflects 924 (c) i." Letter to Judge Townes from Dontae
Sebbern dated Jan. 29, 2017, p. 1. Defendant argues that Rule
36 of the Federal Rules of Criminal Procedure expressly
permits these clerical errors in the judgment to be corrected
at this juncture.
of the Federal Rules of Criminal Procedure provides:
After giving any notice it considers appropriate, 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.
rule "authorizes a district judge, at any time, to amend
the written judgment so that it conforms with the oral
sentence pronounced by the court." United States v.
Werber, 51 F.3d 342, 347 (2d Cir. 1995). It does not
permit amendment of the oral sentence itself, but
"covers only minor, uncontroversial errors."
Id., Notice to the parties is optional under this
rule "because a 'clerical mistake' should appear
on the face of the record, leaving little need for adversary
proceedings to clarify the issue." Id.
letter-motion dated January 29, 2017, Defendant correctly
notes that the judgment contains ministerial errors. First,
the judgment indicates that Defendant pled guilty to eight
counts, rather than noting that he was found guilty of these
counts after pleading not guilty. Second, although the
judgment correctly lists the eight counts which the jury
found Defendant guilty of committing, it does not indicate
that the jury found Defendant not guilty of count ten of the
superseding indictment: unlawful use of a firearm in
connection with the drug trafficking offense charged in count
nine. Third, while the judgment correctly indicates that
Defendant was found guilty of count five of the superseding
indictment, it suggests that he was convicted of violating 18
U.S.C. §§ 924(c)(1)(A)(ii) and 924(c)(1)(A)(iii).
In fact, he was convicted only of violating 18 U.S.C. §
924(c)(1)(A)(i) and was sentenced to a consecutive term of 60
months' imprisonment for this offense.
Defendant's letter motion was filed more than three weeks
ago, the Government has not yet responded to Defendant's
motion. In light of the obvious and incontrovertible nature
of the clerical errors listed above, the Court sees no
purpose in directing the Government to respond to the motion
at this juncture. Rather, the Court will dispense with notice
and direct the Clerk of Court to amend the judgment to
correct these errors.
reasons set forth above, the Clerk of Court is directed to
amend the judgment in this case to reflect 1) that Defendant
was convicted after a jury trial, not upon his plea of
guilty; 2) that Defendant was acquitted of count ten of the
superseding indictment, charging him with unlawful use of a
firearm in connection with the drug trafficking offense
charged in count nine; and 3) that Defendant was convicted
under count five of the superseding ...