DANNY C. REEVES, District Judge.
The United States has moved the Court pursuant to Rule 36 of the Federal Rules of Criminal Procedure to correct the judgment originally entered by former United States District Judge Jennifer B. Coffman to properly reflect the term of incarceration imposed at the time of the defendant's sentencing hearing held in May 2004. [Record No. 76] A hearing on this mtoion was held on November 12, 2013.
On December 4, 2003, a six-count indictment was returned against Anthony Turley and his co-defendant Fayion A. Harris. [Record No. 1] Turley was re-arraigned on February 2, 2004, and his guilty plea to Counts 1 and 3 of the indictment was accepted by the Court. [Record No. 23] On May 27, 2004, Judge Coffman imposed the following sentence:
Based on [the PSR] and the Sentencing Reform Act, it is this Court's judgment that you are committed to the custody of the Bureau of Prisons for a term of 123 months. That's 63 months on Count 1, and 60 months on Count 3 to be served consecutively, so it's 60 plus the 63 on Count 1.
[Record No. 73, p. 10] A five year term of supervised release was also imposed. [ Id. ]
Pursuant to 18 U.S.C. § 924(c), the Court was required to impose the five-year term of imprisonment under Count 3 to run consecutive to the sixty-three month term of incarceration imposed under Count 1. See 18 U.S.C. § 924(c)(1)(D). However, the Judgment signed by Judge Coffman and entered the following day stated that Turley was sentenced to a term of imprisonment of "63 months on Count 1 and 60 months on Count 3, to be served concurrently, for a total term of 63 months." (Emphasis added.) [Record No. 41, p. 2] Thereafter, on May 16, 2008, Judge Coffman granted Turley's motion to reduce his drug sentence under 18 U.S.C. § 3582. [Record No. 62] According to the Judgment entered that date, Turley's sentence was reduced from 63 months to 60 months. [Record No. 62] In other words, the error included in the original Judgment was repeated in the Amended Judgment.
Based on the language contained in the original Judgment, and as reduced by the Amended Judgment, Turley was released from federal custody after serving only a part of the sentence announced in May 2004. And after serving an additional term of incarceration for a violation of state law, the Court was notified that Turley had violated the conditions of supervised release imposed by Judge Coffman. However, due to Judge Coffman's retirement in January 2013, this matter was reassigned to the undersigned. [Record No. 64] On October 22, 2013, the Court held a hearing regarding the violations of Turley's supervised release. [Record No. 71] During this hearing, the undersigned questioned the Assistant United States Attorney regarding whether the Judgment contained an error regarding the total term of incarceration. And although the Court did not revoke the terms of supervised release on that date, additional conditions of supervision were imposed. On October 25, 2013, the United States filed a motion to correct Turley's original Judgment under Federal Rule of Criminal Procedure 36.
Rule 36 of the Federal Rules of Criminal Procedure states:
After 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. In United States v. Penson, 526 F.3d 331 (6th Cir. 2008), the Sixth Circuit clarified what constitutes a clerical error for the purposes of Rule 36:
A clerical error must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature. Rule 36 has been consistently interpreted as dealing only with ...