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United States v. Lino

United States District Court, E.D. New York

January 3, 2020

UNITED STATES OF AMERICA,
v.
ROBERT LINO, Defendant.

          ORDER

          NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE

         Currently 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.

         I. BACKGROUND

         A. Factual Background

         In 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 release. Id.

         On 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).)

         During 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.)

         In 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 23:19-22.)

         After 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.)

         On 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.)

         B. Procedural history

         Mr. 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).)

         II. LEGAL STANDARD

         Federal 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 ...


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