Opinion
Case No. 2:03-CR-104(1).
July 11, 2007
MEMORANDUM OPINION ORDER
Defendant Sears pled guilty to conspiracy to possess with intent to distribute more than 500 grams of cocaine, a violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(ii). On July 11, 2005, the Court sentenced him to 87 months in prison and 4 years of supervised release. This matter is currently before the Court on Defendant's "Ex Parte Motion for a Nunc Pro Tunc Order Which Determines that Offense Was Not a Crime of Violence Pursuant to 18 U.S.C. § 16." (Record at 85). The Court sent a copy of Defendant's ex parte motion to counsel for the Government, who then filed a memorandum in opposition to Defendant's motion.
Defendant seeks entry into the Bureau of Prisons' residential drug abuse program. Successful completion of this treatment program makes some inmates eligible for a reduction in their sentences of up to one year. See 18 U.S.C. § 3621(e)(2)(B). However, defendants convicted of certain felonies, including certain violent crimes, and sex offenses against children, are not eligible for early release under this program. See 28 C.F.R. § 550.58(a)(1)(vi).
Citing 18 U.S.C. § 16, which defines a "crime of violence" as "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," Defendant argues that because he did not use, attempt to use or threaten to use physical force against a person or property, the Court should find that he did not commit a "crime of violence." Defendant believes that, armed with such a finding, he would then be eligible for a reduced sentence upon successful completion of a residential drug abuse program.
The Court has no authority to grant the relief requested. Title 28 U.S.C. § 3582 sets forth the limited circumstances under which a Court can modify a sentence that has already been imposed. Moreover, while federal courts have inherent authority to issue nunc pro tunc orders to correct mistakes in the record, that power is also quite limited. As the Ninth Circuit has explained:
" Nunc pro tunc amendments are permitted primarily so that errors in the record may be corrected. The power to amend nunc pro tunc is a limited one, and may be used only where necessary to correct a clear mistake and prevent injustice." Martin v. Henley, 452 F.2d 295, 299 (9th Cir. 1971). It does not imply the ability to alter the substance of that which actually transpired or to backdate events to serve some other purpose. See Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995). Rather, its use is limited to making the record reflect what the district court actually intended to do at an earlier date, but which it did not sufficiently express or did not accomplish due to some error or inadvertence. See Fierro v. Reno, 217 F.3d 1, 4-5 (1st Cir. 2000).United States v. Sumner, 226 F.3d 1005, 1009-10 (9th Cir. 2000).
In the instant case, Defendant does not seek not to correct any mistake or oversight in the record. Instead, in order to facilitate his entry into a residential drug abuse program and a possible reduction in his sentence, he asks the Court to issue an order declaring that his previous conviction does not constitute a "crime of violence." The Court has no authority to do so. Defendant's motion is therefore DENIED.