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UNITED STATES v. TOLBERT
July 13, 1995
UNITED STATES OF AMERICA
JANE E. TOLBERT, Defendant.
The opinion of the court was delivered by: STANLEY S. HARRIS
Before the Court is defendant's "Motion To Increase Sentence of Imprisonment Nunc Pro Tunc." The government has advised the Court that it does not oppose defendant's motion. However, because the Court lacks jurisdiction to act on defendant's request, defendant's motion to increase her sentence is denied.
Defendant was sentenced by the Court on February 13, 1995, to twelve months' incarceration. She began serving her sentence on April 17, 1995, at FCI Butner. Shortly thereafter, defendant was told that she was ineligible for "good conduct" credit toward early release because her sentence did not exceed one year.
Defendant subsequently filed this motion to increase her sentence by one day.
Fed. R. Crim. P. 35 provides that a district court may alter a sentence in three circumstances only. First, it may correct a sentence that is determined on appeal to be unreasonable, to have been imposed in violation of law, or to have been imposed as a result of an incorrect application of the sentencing guidelines. Fed. R. Crim. P. 35(a). Second, a court may reduce a sentence after the imposition of the sentence, on motion of the government, if the defendant subsequently provides substantial assistance to the government. Fed. R. Crim. P. 35(b). Third, a court may correct a sentence "imposed as a result of arithmetical, technical, or other clear error," within seven days after the imposition of sentence. Fed. R. Crim. P. 35(c).
Outside of these three circumstances, the Court lacks the authority to review and/or correct lawfully imposed sentences. See United States v. Apple, 962 F.2d 335, 337 (4th Cir. 1992) (noting that a sentencing court "no longer has the authority to reduce a sentence under other circumstances") (citing United States v. Hallam, 723 F. Supp. 66, 70 (N.D. Ind. 1989)); United States v. Hernandez, 1992 U.S. Dist. LEXIS 1446 (D.D.C. Feb. 13, 1992) (noting that "the government has not requested a reduction in sentence, and thus the court has no authority under the Federal Rules of Criminal Procedure to grant defendant's motion"). It is true that defendant is not requesting a reduction in her sentence, but an increase, although somewhat perversely the increase apparently would result in a decrease. Nonetheless, the requested increase in defendant's sentence is not a "correction" of her sentence, and in any event this Court now lacks the power either to "correct" or to modify her sentence. Accordingly, defendant's motion to increase her sentence is denied.
United States District ...
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