The opinion of the court was delivered by: CHARLES R. RICHEY
Before the Court are the Defendant's Motion to Amend Sentence and the written and oral responses thereto by the Government and the United States Probation Officer assigned to this case. This matter raises the question of whether a D.C. Superior Court sentence runs consecutively or concurrently to a District Court's sentence where, at the time of sentencing in the District Court, the Defendant had been paroled by the D.C. Parole Board on the Superior Court sentence, but after sentencing, the Parole Board rescinded its decision to grant parole. The Court finds that, under the law, such sentences must run consecutively.
As a preliminary matter, the Court observes that the Defendant failed to specify the statutory provision under which she raises her instant Motion. The time for modification of sentence under Rule 35 of the Federal Rules of Civil Procedure, however, has long since past, and Rule 35 only addresses an illegal sentence while there was nothing illegal about the sentence imposed by this Court on August 16, 1994. See United States v. Lewis, 862 F.2d 748, 750 (9th Cir. 1988), cert. denied, 489 U.S. 1032, 103 L. Ed. 2d 227, 109 S. Ct. 1169 (1989). Thus, as defense counsel implied at a hearing held on January 17, 1995, the question presented here must be treated as within the purview of 28 U.S.C. § 2255. Accordingly, for the reasons discussed herein, the Defendant's Motion to Amend Judgment, considered under 28 U.S.C. § 2255, shall be denied.
This matter initially came before the Court as a result of two letters written by the Defendant to the undersigned, in which the suggestion was made that her sentence was somehow being calculated as longer than the Court intended. Alarmed by the very serious nature of this proposition, the Court issued Show Cause Orders, entered November 30, 1994 and December 15, 1994, directing counsel for both parties to respond to the allegations raised by the Defendant in her letters to the Court. Notwithstanding receipt of briefs by counsel for both parties regarding the same, it was not until the hearing held on January 17, 1995 that the Court was fully and clearly apprised of the circumstances surrounding the Defendant's sentence and the current status of her incarceration.
On June 7, 1994, the Defendant entered a knowing and voluntary plea of guilty to a one-count superseding Information charging her with forging an endorsement on a United States Treasury check. She was then remanded to custody pending preparation of the Presentence Investigation Report. On August 16, 1994, this Court sentenced the Defendant to serve a period of incarceration of eight months, with credit for time served, to be followed by a period of Supervised Release for one year. A special condition of the Defendant's supervised release was that she serve a period of four months in a half-way house.
The circumstances surrounding the Defendant's prior conviction and sentence in the D.C. Superior Court account for the confusion that led to the Defendant's filing of the Motion now before the Court. Prior to the Defendant's arrest for the offense in this case, the Defendant was under the supervision of the D.C. Parole Board. On March 24, 1994, the D.C. Parole Board issued a parole violator's warrant for her arrest. On April 21, 1994, the warrant was executed and the Defendant was taken into custody. She was in custody at the D.C. jail at the time she was arrested for the federal offense of forgery on May 17, 1994. On June 29, 1994, however, the D.C. Parole Board revoked her parole for criminal and noncriminal violations and granted reparole to supervision that date. The Notice of the Board's order is attached hereto as Exhibit A and made a part hereof. Thus, as of that date, this Court's Order of detention without bond was the only provision of law that detained the Defendant at the D.C. jail. Accordingly, at sentencing in this case, the Court was advised that the Defendant had been paroled on the Superior Court conviction at issue, and that the only matter holding the Defendant was the instant case. The relevant portions of the Presentence Investigation Report are attached hereto as Exhibit B. The Court imposed sentence accordingly on August 16, 1994.
However, nearly two months after this Court sentenced the Defendant, on October 12, 1994, the D.C. Board of Parole issued a second order which rescinded their prior order of June 29, 1994, and ordered the Defendant detained as a parole violator to be released at her mandatory release date of March 6, 1995. This Notice of the Board's order is also attached hereto as Exhibit C and made a part hereof.
The Court observes that the facts of this case implicate three possible release dates. First, if the Defendant were to complete her federal sentence without interruption, she would be released from federal custody on February 28, 1995. Second, however, if the Superior Court sentence were allowed to run concurrently with the Defendant's federal sentence, she would not ultimately be released from D.C. custody until March 6, 1995, the date on which her Superior Court sentence terminates. Lastly, if the sentences were allowed to run consecutively, the Defendant must complete her Superior Court sentence before recommencing her federal sentence, which shall run with credit for time served as a result of the federal charges. Under this last scenario, the Defendant would be released from custody on July 19, 1995.
It is the Defendant's position that, at the time of her sentencing in this case, she was committed to the custody of the United States Bureau of Prisons for service of her federal sentence, and that the D.C. Parole Board's unilateral decision in October of 1994 to rescind their earlier grant of reparole to supervision did not and could not operate to stop this Court's sentence from running.
The Government takes a different view, arguing that, because the Court uttered neither the word "concurrent" nor the word "consecutive" at the time of the oral pronouncement of sentence, and because the Court was advised at the time of sentencing that the Defendant had been paroled by the District of Columbia Superior Court, it is obvious that the Court was dealing only with the federal conviction.
Absent a specific ...