ALD-151 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-3554

___________

UNITED STATES OF AMERICA

v.

CLIFTON SAVAGE,

 Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-09-cr-00600-001)

District Judge: Honorable Berle M. Schiller

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

March 15, 2018

Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges

(Opinion filed: September 28, 2018)

_________

OPINION*

__________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Pro se appellant Clifton Savage appeals the District Court’s denial of his motion to 

correct a clerical error. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the 

reasons that follow, we will summarily affirm the judgment of the District Court. 

In 2010, Savage was convicted by a jury of possession of a firearm by a convicted 

felon in violation of 18 U.S.C. § 922 (g)(1). On January 3, 2011, he was sentenced under 

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), to 180 months’ imprisonment. In 

2017, Savage filed a motion to correct a clerical error, arguing that his “release date has 

been gravely miscalculated” by the Bureau of Prisons because the written judgment and 

commitment order did not indicate when his federal sentence was to begin. He requested 

that the District Court clarify the judgment to indicate when the sentence was to 

commence “so that this error can be promptly corrected.” The Government responded 

that, because the judgment and commitment order was silent on the matter, the federal 

sentence was calculated to run consecutive to a previously imposed state sentence, from 

which Savage was paroled on December 30, 2015. See 18 U.S.C. § 3584(a) (where a 

federal sentencing court’s judgment is silent on whether the federal sentence was to be 

consecutive or concurrent, the default presumption is consecutive sentences). It argued 

that the motion should be denied because Savage was attempting to challenge the length 

of his confinement, for which 28 U.S.C. § 2241 was the proper vehicle, and for which he 

must first exhaust his administrative remedies. The District Court denied the motion 

without an opinion, and this timely appeal ensued. 
3

As captioned, Savage’s motion sought to “correct [a] clerical error.” In support 

thereof, Savage argued that his sentence was “miscalculated” to begin “5 years after the 

Court imposed,” and he repeatedly stated that the written judgment was in “error.”1 

Although the motion was not entirely explicit, when construed liberally, it seeks to have 

the written judgment corrected to reflect that Savage’s sentence, as imposed, was to run 

concurrently with his state sentence. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 

2003) (stating the general rule that courts are to liberally construe pro se litigants’ 

pleadings). Such a motion is properly construed as brought pursuant to Fed. R. Crim. P. 

36, “the “clerical error” rule.2 

A court may at any time “correct a clerical error in a judgment.” Fed. R. Crim. P. 

36. “A clerical error involves a failure to accurately record a statement or action by the 

court or one of the parties.” United States v. Bennett, 423 F.3d 271, 277–78 (3d Cir. 

2005) (quoting 26 James Wm. Moore et al., Moore's Federal Practice ¶ 636.02[2] (3d ed. 

filed through 2005)). As we have explained, “Rule 36 is normally used to correct a 

written judgment of sentence to conform to the oral sentence pronounced by the judge.” 

 

1

In a reply to the Government’s response, filed after the District Court’s order was 

entered denying the motion, Savage argued that the Government misconstrued his 

motion, and that he “is simply requesting the Court to state for the record when his 

sentence commenced to correct a current error.”

2 We have yet to articulate a standard of review for the denial of a Rule 36 motion in a 

precedential opinion. Although there is disagreement among the courts of appeal, see, 

e.g., United States v. Niemiec, 689 F.2d 688, 693 (7th Cir. 1982) (abuse of discretion); 

United States v. Dickie, 752 F.2d 1398, 1402 (9th Cir. 1985) (clearly erroneous); (United 

States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (plenary review), we need not 

resolve that issue here because under any available standard we would affirm. 
4

Id. at 278; see also United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991) (noting the 

“firmly established and settled principle of federal criminal law that an orally pronounced 

sentence controls over a judgment and commitment order when the two conflict”) 

(citation omitted). We have recognized that the failure of a judgment and commitment 

order to reflect a clear pronouncement at oral sentencing regarding whether a federal 

sentence is either to be consecutive or concurrent to another sentence is a clerical error, 

which is within the ambit of Rule 36’s power to correct. See id.

We find no evidence of a clerical error in this record. At the sentencing hearing, 

there was no oral argument made, nor did the District Court directly discuss whether the 

federal sentence should run concurrent with or consecutive to the state sentence. At the 

close of the hearing, the Court stated, “I’m ordering that the sentence I’ve just imposed 

be executed immediately, and you are to begin serving the sentence I imposed on you. 

Any recommendations as to where he should serve it?” District Ct. Docket #77, pg. 31. 

While the first two statements could be an indication that the federal sentence was to run 

concurrent with the state sentence, the question that followed could suggest that the 

District Court was unaware of the state sentence. At best, the sentencing transcript is 

ambiguous as to whether the District Court intended for the federal sentence to run 

concurrent with or consecutive to the state sentence. Accordingly, the judgment and 

commitment order’s silence on the matter was not an error, and, therefore, the District 

Court properly denied the Rule 36 motion. Cf. United States v. Medina-Mora, 796 F.3d 

698, 700 (7th Cir. 2015) (“Because the written judgment failed to capture accurately the 
5

unambiguous oral pronouncement, Rule 36 allows for correction of such a clerical error 

at any time.”).3

Because no “substantial question” is presented as to the denial of the “motion to 

correct clerical error,” we will summarily affirm the judgment of the District Court. See

3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

 

3 We note that, to the extent the motion could have been construed as a § 2241 petition, 

the District Court lacked jurisdiction to consider it because Savage is confined in the 

District of New Jersey. See 28 U.S.C. § 2241; Rumsfeld v. Padilla, 542 U.S. 426, 442-43 

(2004) (holding that § 2241 petitions must be filed in district of confinement).