IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, ) No. 04 CR 682

)
ve )

) Judge Ronald A. Guzman
MAURICE KENNETH MCKNIGHT, —)
)
Defendant. )

MEMORANDUM OPINION AND ORDER
On July 12, 2005, the Court sentenced Maurice McKnight to cighty months of
imprisonment and five years of supervised release. He now moves to correct his sentence
pursuant to Federal Rule of Criminal Procedure (“Rule”) 36. For the reasons set forth
below, the Court construcs the motion as a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2241 and dismisses it without prejudice.

Facts
In August 2004, McKnight and others were arrested in Michigan for, among other
things, conspiring to possess with intent to distribute narcotics throughout the Midwest.
From August 11, 2004 through October 5, 2005, McKnight was released on bond by order
of a Michigan District Court, (Def.’s Mot. Correct Sent, at 2-3.) On March 22, 2005,
McKnight pleaded guilty to one count of conspiring to possess with the intent to distribute
narcotics. (Plea Agreement] 5.) On July 12, 2005, the Court sentenced McKnight to cighty

months of imprisonment followed by a five-year period of supervised release. (See 7/29/05


Sentencing Order.) McKnight now contends that the thirteen-month period during which

rs

he was released on bond constituted a period of“consiructive detention” for which he should

receive credit.

Discussion

Rule 36 permits thc to “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” al any time.
Fed. R. Crim. P, 36. As used in the Rule, clerical error is one not of “judgment or even of
misidentification, but merely of recitation, of the sort that a clerk or amanuensis might
commit, mechanical in nature.” United States v. Bennett, 423 F.3d 271, 278 (3rd Cir. 2005)
(internal quotation omitted). Clerical errors do not include “[sentencing] errors made by the
court itself” United States y. Daddino, 5 F,3d 262, 264 (7th Cir. 1993) (per curiam),
McKnight contests a purported error of the Court, its failure to reduce his sentence for time
served, not a clerical error. Thus his “claim for time served... is not cognizable in a
proceeding pursuant to Fed. R. Crim. P. 36.” United States y. Mares, 868 F.2d 151, 151 (Sth
Cir. 1989).

The statute McKnight’s motion actually implicates is 18 U.S.C. § 3585, That section
requires the government, in certain circumstances, to give a defendant credit for time served
before his sentence began. 18 U.S.C. § 3583(b). However, the statute vests the U.S.
Attorney General, not the courts, with the authority to determine whether a defendant is
entitled to such credit. United States v. Wilson, 503 U.S. 329, 333 (1992). Thus, the Court

has no power to adjust McKnight’s sentence for time served,


Of course, the Court can review the Attorney Gencral’s determination via a writ of
habeas corpus, see United States v. Jones, 34 F.3d 495, 499 (7th Cir. 1994), which is, in
essence, what McKnight’s motion is. But exhaustion of administrative remedies is a
prerequisite to such a petition. CZemente v, Allen, 120 F.3d 703, 705 (7th Cir. 1997) (“[We
review a claim concerning the computation of a sentence only after administrative remedies
have been exhausted.”) McKnight does not say that he submitted his request for time-served

credit to the Attorney General. Therefore, his motion is premature and must be dismissed.

See United States v. Brumbaugh, 909 F 2d 289, 290 (7th Cir. 1990) (holding that “the district

court should nol have addressed the merits [of the credit-for-time-served issue] because the
defendant first must present his claim to the Attorney General through the Bureau of

Prisons.”).

Conclusion
For the reasons slated above, petitioner Maurice Kenneth McKnight’s motion to

correct sentence [doc. no. 223] is dismissed without projudice.

SO ORDERED. ENTERED: // YE 03/ 0@

Balboa

HON. RONALD A. GUZ!
United States District Jud,