UNITED STATES COURT OF APPEALS TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SEBASTIAN L. ECCLESTON, Defendant - Appellant. No. 13-2112 (D. New Mexico) (D.C. No. 1:95-CR-00014-LH-2)

ORDER

Before HARTZ , GORSUCH , and PHILLIPS , Circuit Judges.

Sebastian Eccleston recently filed a motion for rehearing, which we have construed to be a petition for panel reh earing and rehearing en banc. See Fed. R. App. P. 40; Fed. R. App. P. 35(b). So construed, the petition was reviewed by the panel of judges originally assigned to this matter. To the extent Eccleston requests a pane l rehearing, that request is denied. Further, the petition was sent to all of the judges of the court who are in regular active service. Because no member of the pa nel and no judge in regular active service requested that the court be polled, Eccleston’ s request for an en banc rehearing also is denied. The panel has determined, how ever, that a factual correction should be made to the original decision. The correction can be found on page 2. The clerk is directed to file the FILED United States Court of Appeals Tenth Circuit 

### December 20, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - attached corrected Order & Judgment nunc pro tunc to the original filing date of November 25, 2013.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkUNITED STATES COURT OF APPEALS TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SEBASTIAN L. ECCLESTON, Defendant - Appellant. No. 13-2112 (D. New Mexico) (D.C. No. 1:95-CR-00014-LH-2)

ORDER AND JUDGMENT*

Before HARTZ , GORSUCH , and PHILLIPS , Circuit Judges.

Several years ago in New Mexico Sebastia n Eccleston murdered 18-year-old Ricky Comingo. Two days later, he stole a car us ing a sawed-off shotgun and then robbed two people at gunpoint. After being arrested by state law-enforcement officers, Eccleston pleaded guilty in state court to first-degree murder and cons piracy to commit first-degree murder. He pleaded guilty in federal court to carjacking, using and carrying a sawed-off shotgun during and in relation to carjacking, interference with commerce by threat or violence, and carrying a sawed-off shotgun dur ing and in relation to interference with

commerce.

* The case is submitted on the briefs because the partie s waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This order and ju dgment is not bi nding precedent except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federa l Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 25, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - The federal court sentenced Eccleston firs t. It gave him 120 months on the first firearm count and 240 m onths on the second, to run consec utively, and then 57 months on the two remaining counts, running concurrently with each other but consecutive to the firearm counts for a total of 417 months. At the sentencing hearing, the district court adopted the probation officer’s presentence report (PSR), which recited the fact that Eccleston’s state plea agreement contai ned a provision that his state term of imprisonment would run concurrently with any federal term. However, the district court did not state at the sentenci ng hearing whether Eccleston’ s federal sentence would run concurrently with or consecuti vely to his yet-to-be-imposed state sentence. The district court’s written judgment was simi larly silent on that score. After Eccleston’s federal sentencing, the st ate court sentenced him to life in prison plus nine years. Because New Mexico was the first to take Eccleston into custody following his arrest, it had pr imary jurisdiction over him. See Weekes v. Fleming , 301 F.3d 1175, 1180 (10th Cir. 2002) (explaini ng the primary-jurisdiction doctrine). As a result, Eccleston was placed in state custody and began serving his st ate sentence before his federal sentence. Several years later, Eccleston filed a habeas petition in federal district court under 28 U.S.C. § 2241, arguing that his federal sentence was not bei ng properly executed. Although Eccleston’s federal and state senten ces were running consecutively, he believed he was entitled to serve those sentences concu rrently in a federal fa cility with his time in state custody credited against his federal sent ence. On appeal, we remanded the case to the district court with instructions to dism iss Eccleston’s petition with prejudice because- 3 - it failed to raise any viable claim. United States v. Eccleston , 521 F.3d 1249 , 1251 (10th Cir. 2008). Eccleston then attempted to achieve the sa me result—having his state time credited against his federal sentence—via a different road. To that end he filed a motion under Federal Rule of Criminal Procedure 36 aski ng the district court to amend its written judgment to make his federal sentence conc urrent with his state sentence. Rule 36 provides, “[a]fter giving any notice it consid ers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the reco rd, or correct an error in the record arising from oversight or omissi on.” Fed. R. Crim. P. 36. The district court denied Eccleston’s motion. Now on appeal, Eccleston claims the distri ct court erred in doing so. His argument starts with the following pr emise: If a district court in tended a defendant’s federal sentence to run concurrently with a later-impos ed state sentence but its written judgment omitted any statement to that effect, then th e district court may correct that omission under Rule 36. Here, although the written ju dgment is silent on how Eccleston’s federal and state sentences would run, Eccleston says the district c ourt intended the sentences to run concurrently. To prove it, he points to th e district court’s adoption of the PSR, which allegedly stated that his sentences would run concurrently. As a result, Eccleston believes the district court should have granted hi s Rule 36 motion and corrected its written judgment to reflect its intent to run hi s federal and state sentences concurrently. We are not persuaded, however, that the di strict court’s adoption of the PSR proves so much. The PSR did not say that Ecclest on’s federal and state sentences would run- 4 - concurrently; it merely recited the fact that Eccleston’s state plea agreement included a provision that his state sentence would ru n concurrently with his federal sentence. See Eccleston , 521 F.3d at 1251 (“The state plea agr eement provided that Mr. Eccleston’s state term of imprisonment would run concurre ntly with any federal term.”). To say the district court adopted that r ecitation in the PSR doesn’t sa y very much. Was the district court merely acknowledging the existence of a provision in Eccleston’s state plea agreement or using that provision to inform its decision on how to run Eccleston’s federal and state sentences? The answers to those ques tions are not readily apparent to us. In other words, we think the district court’s a doption of the PSR sheds little light on whether the district court intended to run Eccleston’ s sentences concurrently or consecutively. Two other facts, however, do shed consider able light on the subject and persuade us that the district court intended Eccleston’s federal sentence to r un consecutively to his state sentence. First, the record contains a quotation from a letter th e district court wrote to the Bureau of Prisons sta ting, “[i]t was my intent at sentencing that the federal sentence be served consecutively to [Ecclest on’s] state sentence and this remains my position.” R. at 199. Second, wh en the district court sentence d Eccleston, the law in this circuit was that multiple terms of impris onment imposed at different times were consecutive unless the district court ordered otherwise. See United States v. Williams , 46 F.3d 57, 59 (10th Cir. 1 995). Presumably aware of Williams , the district court knew that its silence meant Eccleston’s se ntences would run consecutively. Because the district court intended Ecclesto n’s federal sentence to run consecutively to his state sentence, it understandably rej ected Eccleston’s request to amend the written- 5 - judgment to make those sentences concurre nt. In short, the district court denied Eccleston’s motion to amend because there was no error or omission to amend. We don’t see anything wrong with that. We therefore affirm the district court’s order denying Eccleston’s Rule 36 motion. We grant Eccleston’s motion to proceed in forma pauperis

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ENTERED FOR THE COURT
Gregory A. Phillips Circuit Judge