UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CASE NO.: 1:13-CR-63-TLS

)

RAUL RESENDIZ )

OPINION AND ORDER

The Defendant, Raul Resendiz, has filed a pro se motion titled: Motion to Correct a

Clerical Error Pursuant to Federal Rule of Criminal Procedure, Rule § 36 [ECF No. 58]. The

Defendant maintains that his judgment and conviction contains a clerical error.

According to Federal Rule of Criminal Procedure 36, “[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.” The

Defendant maintains that his plea of guilty to the single count of the Indictment charging him

with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), was

predicated on his sentence being concurrent to a state term of imprisonment that had not yet been

imposed. However, there is no mention of this understanding in the Plea Agreement [ECF No.

20], or anywhere else in the record. 

This Court’s October 2, 2014, judgment ordering the Defendant to serve 46 months

imprisonment is silent as to any state charges. On October 17, 2014, the State of Indiana ordered

the Defendant to serve a 2-year term of confinement. The state term was silent as to the federal

sentence. On this same date, October 17, 2014, the Defendant’s state sentence was satisfied

based on credit being applied for prior custody. Thus, he was released to the federal detainer to

begin serving the federal sentence imposed in this case. 
The Defendant requested through the BOP’s administrative remedy program that the

period from July 21, 2013, to July 18, 2014, which had been credited against his state sentence,

also be credited against his 46–month federal sentence. This would effectively reduce his federal

sentence to 34 months.The BOP denied his request under 18 U.S.C. § 3582(b), which governs

the calculation of a term of imprisonment. It provides that a defendant should be given credit

toward the service of a term of imprisonment for time spent in official detention for another

charge prior to the date the sentence commences, if it “has not been credited against another

sentence.” 18 U.S.C. § 3582(b). 

Rather than challenge the BOP’s calculation of his sentence by filing a writ under 28

U.S.C. § 2241 against the warden having custody of him, and in the district where he is

incarcerated, 28 U.S.C. § 2243, the Defendant seeks relief from this Court under Rule 36. He

asks that the Court “effect correction of clerical error by ordering [his] Sentence to 34 months

prospectively nunc pro tunc as of his Sentencing. Such correction allows for the imposition of

the total appropriate Sentence of 46 months including the 12 month period not creditable due to

[18 U.S.C. §] 3585(b).” (Mot. 4, ECF No. 58.) 

A federal sentencing court has authority to make a sentence run concurrently with a state

sentence that has not yet been imposed. Manuel v. Terris, — F.3d —, No. 15-1392, 2015 WL

5853637, at *1 (7th Cir. Oct. 7, 2015) (citing Setser v. United States, 132 S. Ct. 1463, 1468

(2012)). But there is no basis in this record to conclude that the Court exercised this authority

when it sentenced the Defendant. That is, there is no evidence that the lack of any mention in the

judgment of an anticipated state sentence was the result of a clerical oversight or omission, as

required for Rule 36 to apply. See Deutsch v. United States, 221 F.3d 1338 (2000) (observing

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that “clerical” mistakes are limited to errors in transcription) (citing United States v. Becker, 36

F.3d 708, 709–10 & n.2 (7th Cir. 1994)). Rather, the written judgment mirrors the court’s oral

pronouncement of the Defendant’s sentence. Thus, there is no transcription error upon which to

base Rule 36 relief.1

“When a court pronounces sentence orally, that is the defendant’s sentence, at least if the

oral pronouncement is unambiguous.” United States v. Medina-Mora, 796 F.3d 698, 700 (7th

Cir. 2015). The Court unambiguously imposed a sentence of 46 months, expressly finding that it

was sufficient, but not greater than necessary, to comply with the purposes of punishment in

light of the nature and circumstances of the Defendant’s offense, and the background and

characteristics of the Defendant. There is no basis, pursuant to Rule 36 or otherwise, to reduce

the Defendant’s sentence to 34 months.

CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion to Correct a

Clerical Error [ECF No. 58].

SO ORDERED on November 5, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

1 If what the Defendant is asserting is that the Court’s oversight occurred during the oral

pronouncement, his claim fares no better. Even if this were true, Rule 36 does not provide authority for

challenging an oversight made by the court itself. United States v. Daddino, 5 F.3d 262, 265 (7th Cir.

1993). In any event, there is no evidence suggesting that the Court intended to impose the federal

sentence to run concurrent with an anticipated state sentence, but simply failed to mention it.

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