United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE
matter is before the Court on Defendant Patrick Gene
Hopper's pro se Motion to Run Sentences Concurrent. [DN
39]. The Government responded. [DN 41]. Defendant did not
reply and the deadline to do so has passed. This matter is
ripe for adjudication. For the reasons stated herein:
Defendant's Motion to Run Sentences Concurrent, [DN 39],
January 11, 2006, Defendant was indicted on three counts of
bank robbery, one count relating to the use of a firearm
during a robbery, and one count of possessing a firearm while
subject to a domestic violence order. [DN 41 at 113]. On
January 19, 2006, Defendant was indicted in state court for
burglary, rape, and theft. Id. On March 10, 2006, he
was indicted again in state court for burglary and theft.
January 12, 2007, Defendant pled guilty to the federal
charges and was sentenced to 117 months imprisonment.
Id. at 114. Pursuant to his Plea Agreement,
Defendant waived his right to “contest or collaterally
attack his conviction and/or the resulting sentence pursuant
to 28 U.S.C. § 2255 for ineffective assistance of
counsel, or otherwise.” [DN 28]. Defendant is currently
serving a sentence relating to his state charges, which have
a maximum expiration of sentence date of May 29, 2043. [DN 41
at 114]. He filed the instant motion requesting the Court run
his federal sentence concurrently with the state sentence.
STANDARD AND DISCUSSION
Defendant asserts that this Court may impose a concurrent
sentence under 18 U.S.C. § 3584(a). [DN 39 at 106]. In
response, the Government contends that the Court lacks
jurisdiction to consider Defendant's request. [DN 41 at
114]. Moreover, the Government argues that if the Court
considers Defendant's motion pursuant to 28 U.S.C. §
2255, it should be denied given that Defendant waived his
right to collaterally attack his sentence and the motion
falls outside the one-year statute of limitations listed in
28 U.S.C. § 2255(f). Id. at 115.
U.S.C. § 3584
requests the Court run his federal sentence concurrently with
his state sentence pursuant to 18 U.S.C. § 3584.
Defendant's reliance on this statute, however, is
misplaced. Section 3584 is applicable at the time a court
first imposes a sentence, not when a defendant is seeking
correction of his sentence. Section 3584 “does not
provide this court with any authority to substantively alter
a sentence . . . .” Wilson v. United States,
969 F.Supp. 1054, 1057 (E.D. Mich. 1997). Instead, Defendant
must rely on Federal Rule of Criminal Procedure 35 or 18
U.S.C. § 3582(c) to amend his sentence.
Rule 35 nor 18 U.S.C. § 3582(c) are applicable to
Defendant's case. First, Rule 35 only allows the Court to
correct or reduce a sentence when there is a clear error or
the government makes a motion to have the sentence reduced as
a result of a defendant's substantial assistance. Fed. R.
Crim. P. 35(a), (b). Section 3582(c) states that a court may
not modify a term of imprisonment except in cases where the
Director of the Bureau of Prisons files a motion to reduce a
defendant's sentence, in cases where Rule 35 is
applicable, or in cases where the sentencing range has been
lowered by the Sentencing Commission. 18 U.S.C. §
3582(c). Defendant's request for concurrent sentencing is
not an available remedy under these rules and statutes, and
therefore, the Court has no means by which to amend
U.S.C. § 2255
not raised by Defendant, the Government notes that if the
Court were to construe the instant motion as one for relief
pursuant to 28 U.S.C. § 2255, it should still be denied.
Pursuant to § 2255, a prisoner has a right to
collaterally attack his sentence for a variety of reasons,
including if the sentence imposed is in violation of the laws
of the United States or in excess of the maximum sentence
authorized by law. 28 U.S.C. § 2255(a). However,
“[a] defendant may waive any right in a plea agreement,
including a constitutional right, if the waiver is made
knowingly and voluntarily.” United States v.
Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001).
“The Sixth Circuit has held, in particular, that a
movant's waiver of his right to collaterally attack his
sentence is generally enforceable.” Foreman v.
United States, No. 1:08-CV-1115, 2010 WL 2854274, at *2
(W.D. Mich. July 19, 2010) (citing In re Acosta, 480
F.3d 421, 422 (6th Cir. 2007)). In this case, Defendant made
a knowing and voluntary waiver of his right “to contest
or collaterally attack his conviction and/or the resulting
sentence pursuant to 28 U.S.C. § 2255 for ineffective
assistance of counsel or otherwise.” [DN 28].
Therefore, if the Court were to construe his motion as a
collateral attack on his sentence pursuant to § 2255, it
must be denied.
reasons stated herein: IT IS HEREBY ORDERED: Defendant's
Motion to Run ...