United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE
pending before the court is Defendant Robert Lino's
Motion to Correct Written Judgment of Conviction to Conform
to the Oral Pronouncement of Sentence (Motion to Correct
Written J. ("Mot.") (Dkt. 1082)) and Motion to
Expedite Ruling on the Motion to Correct (Mot. to Expedite
(Dkt. 1085)). For the reasons explained below,
Defendant's motion to correct the written judgment is
DENIED and his motion to expedite is DENIED as moot.
2001, Defendant pleaded guilty in a separate case in the
Southern District of New York (S.D.N.Y.) to one count of
racketeering and one count of racketeering conspiracy.
See Judgement, United States v. Lino, No.
00-CR-632 (WHP) (S.D.N.Y. July 23, 2001); (see also
Mot. at 2). District Judge William Pauley sentenced Defendant
to 83 months imprisonment and three years of supervised
October 1, 2001, Defendant began serving this sentence.
Id. On March 18, 2004, Defendant pleaded guilty in
the instant case to one count of racketeering conspiracy.
(Mar. 18, 2004 Min. Entry.) On November 12, 2004, the court
sentenced Defendant to 324 months of imprisonment to be
followed by 5 years of supervised release. (Nov. 12, 2004
Min. Entry; see also Judgment (Dkt. 856).)
Mr. Lino's sentencing hearing, his attorney argued that
Mr. Lino's sentence should run concurrently with the
"undischarged term of imprisonment Mr. Lino [was]
serving." (Sentencing Tr. (Dkt. 1082-1) at 22:7.) Mr.
Lino's counsel reasoned that the prior conviction in the
Southern District was "for the same enterprise" and
"include[d] the same type of charge, racketeering
conspiracy." (Id. at 22:8-9.) After citing
cases in support of his argument, Mr. Lino's counsel
concluded by requesting that "Mr. Lino receive 27 years
concurrent with the conviction of the Southern District case
and commence serving his time in... October of 2001."
(Id. at 23:7-11.)
response, the court stated "[w]ith respect to whether
the Court is obligated to sentence concurrently or
consecutively, I don't necessarily agree with your legal
analysis and conclusions." (Id. at 23:13-16.)
The court further reasoned that the crimes underlying the
prior conviction in the Southern District were
"substantially different" from those at issue in
this case because "[s]tock fraud, even if it is part of
a racketeering conspiracy, and murder and murder conspiracy
are ... extremely different." (Id. at
providing Mr. Lino an opportunity to speak on his own behalf,
the court sentenced him: "I'm going to sentence you
as follows: 324 months in the custody of the Attorney General
concurrent with the undischarged 83-month term of
imprisonment imposed in the Southern District of New York on
July 20th, 2001." (Id. at 25:7-10.)
November 29, 2004, the court signed the written judgment.
(Judgment at 1.) The judgment states that "defendant is
hereby committed to the custody of the United States Bureau
of Prisons to be imprisoned for a total term of THREE-HUNDRED
AND TWENTY-FOUR (324) MONTHS ON COUNT ONE (1) OF THE
SUPERSEDING INDICTMENT CR-02-307 (S-20) WHICH SHALL RUN
CONCURRENTLY WITH THE UNDISCHARGED TERM OF IMPRISONMENT
IMPOSED IN THE SOUTHERN DISTRICT OF NEW YORK."
(Id. at 2.)
Lino filed his pro se motion to correct the written
judgment on January 14, 2019. (Mot.) On March 20, 2019, he
filed a supplement to and request for an expedited ruling on
his motion. (Suppl. Mot. and Request for Expedited Ruling
(Dkt. 1084).) On June 25, 2019, Mr. Lino filed a Motion to
Expedite. (Mot. to Expedite.) The Government responded on
July 22, 2019. (Resp. in Opp'n to Mot. to Correct Written
J. ("Resp.") (Dkt. 1088).) Mr. Lino replied on
August 9, 2019. (Reply (Dkt. 1091).)
Rule of Criminal Procedure 36 states: "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 arising from oversight or omission." Fed.
R. Crim. P. 36. Rule 36 is a "limited avenue for
correction of a judgment." United States v.
DeMartino, 112 F.3d 75, 79 (2d. Cir 1997). A court has
authority under Rule 36 "to correct only clerical errors
in the transcription of judgments, not to effectuate its
unexpressed intentions at the time of sentencing."
United States v. Werben51 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