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 rehearing 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 panel 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 panel 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, however, 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
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attached corrected Order & Judgment nunc pro tunc to the original filing date of 

November 25, 2013. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk 

 
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 AND JUDGMENT* 

Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges. 

Several years ago in New Mexico Sebastian Eccleston murdered 18-year-old Ricky 

Comingo. Two days later, he stole a car using 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 conspiracy 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 during and in relation to interference with 

commerce. 

 

* The case is submitted on the briefs because the parties waived oral argument. See Fed. 

R. App. P. 34(f); 10th Cir. R. 34.1(G). This order and judgment is not binding precedent 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It may 

be cited, however, for its persuasive value consistent with Federal 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 first. It gave him 120 months on the first 

firearm count and 240 months on the second, to run consecutively, 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 contained a provision that his state term of 

imprisonment would run concurrently with any federal term. However, the district court 

did not state at the sentencing hearing whether Eccleston’s federal sentence would run 

concurrently with or consecutively to his yet-to-be-imposed state sentence. The district 

court’s written judgment was similarly silent on that score. 

After Eccleston’s federal sentencing, the state 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 primary jurisdiction over him. See Weekes v. Fleming, 301 

F.3d 1175, 1180 (10th Cir. 2002) (explaining the primary-jurisdiction doctrine). As a 

result, Eccleston was placed in state custody and began serving his state 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 being properly executed. 

Although Eccleston’s federal and state sentences were running consecutively, he believed 

he was entitled to serve those sentences concurrently in a federal facility with his time in 

state custody credited against his federal sentence. On appeal, we remanded the case to 

the district court with instructions to dismiss Eccleston’s petition with prejudice because 
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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 same 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 asking the district court to amend its written 

judgment to make his federal sentence concurrent with his state sentence. Rule 36 

provides, “[a]fter 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, or correct an error 

in the record arising from oversight or omission.” Fed. R. Crim. P. 36. The district court 

denied Eccleston’s motion. 

Now on appeal, Eccleston claims the district court erred in doing so. His argument 

starts with the following premise: If a district court intended a defendant’s federal 

sentence to run concurrently with a later-imposed state sentence but its written judgment 

omitted any statement to that effect, then the district court may correct that omission 

under Rule 36. Here, although the written judgment is silent on how Eccleston’s federal 

and state sentences would run, Eccleston says the district court intended the sentences to 

run concurrently. To prove it, he points to the 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 his Rule 36 motion and corrected its written 

judgment to reflect its intent to run his federal and state sentences concurrently. 

We are not persuaded, however, that the district court’s adoption of the PSR proves 

so much. The PSR did not say that Eccleston’s federal and state sentences would run 
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concurrently; it merely recited the fact that Eccleston’s state plea agreement included a 

provision that his state sentence would run concurrently with his federal sentence. See 

Eccleston, 521 F.3d at 1251 (“The state plea agreement provided that Mr. Eccleston’s 

state term of imprisonment would run concurrently with any federal term.”). To say the 

district court adopted that recitation in the PSR doesn’t say 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 questions are not readily apparent to us. In 

other words, we think the district court’s adoption 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 considerable light on the subject and persuade us 

that the district court intended Eccleston’s federal sentence to run consecutively to his 

state sentence. First, the record contains a quotation from a letter the district court wrote 

to the Bureau of Prisons stating, “[i]t was my intent at sentencing that the federal 

sentence be served consecutively to [Eccleston’s] state sentence and this remains my 

position.” R. at 199. Second, when the district court sentenced Eccleston, the law in this 

circuit was that multiple terms of imprisonment imposed at different times were 

consecutive unless the district court ordered otherwise. See United States v. Williams, 46 

F.3d 57, 59 (10th Cir. 1995). Presumably aware of Williams, the district court knew that 

its silence meant Eccleston’s sentences would run consecutively. 

Because the district court intended Eccleston’s federal sentence to run consecutively 

to his state sentence, it understandably rejected Eccleston’s request to amend the written 
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judgment to make those sentences concurrent. 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. 

ENTERED FOR THE COURT 

Gregory A. Phillips 

Circuit Judge