IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

: Cr. No. 91-181 (TPJ) :

v. : :

xxxxxxxxxxxx, :

Defendant. :

MOTION TO CORRECT SENTENCE

Defendant xxxxxxxx, through counsel, respectfully moves the court to correct the sentence imposed in this case on May 30, 1996, and as grounds, shows the court:

1. FED.R.CR.P. 35(a) permits this court to correct an illegal sentence at any time after the imposition of sentence.

2. On May 30, 1996, this court sentenced Mr. xxxxxxxx on his pleas of guilty to conspiracy, in violation of 18 U.S.C. з 371, and possession with intent to distribute cocaine, in violation of 33 D.C. Code з 541(a)(1).⁽¹⁾ The court imposed the maximum penalty of five years on the conspiracy count, and a sentence of four to twelve years imprisonment on the D. C. Code offense, to run consecutive to each other. Because Mr. xxxxxxxx was on parole at the time of the offenses to which he plead guilty, the court ordered that the sentences run concurrent with any sentence he was serving for the parole violation.

3. When Mr. xxxxxxxx was sentenced, both he and counsel believed that this court had jurisdiction to order that his sentence run concurrent with his parole back-up time. That position was based upon the following:

a. When Mr. xxxxxxxx was arrested in the instant case, the United States Parole Commission issued a parole violator's warrant, attached as Exhibit A, against him. The warrant was issued on April 30, 1991. The warrant directed the United States Marshal to take Mr. xxxxxxxx into custody on the warrant. Under the Parole Commission and Reorganization Act of 1976, 18 U.S.C. зз 4201-4218, parole violator warrants are to be executed in the manner directed in Exhibit A, unless contrary directions are provided to the marshal. Chandler v. Barncastle, 919 F.2d 23, 26 (5th Cir. 1990). b. When the United States Marshal follows the instructions of the Parole Commission in taking a subject into custody, the warrant is deemed executed. Barnard v. Henman, 89 F.3d 373, 377 (7th Cir. 1996); Thompson v. Crabtree, 82 F.3d 312 (9th Cir. 1996; Sinclair v. Henman, 986 F.2d 407, 408 (10th Cir. 1993).

c. The execution of a parole violator's warrant triggers the running of the unexpired portion of the original sentence, and the court then has authority to run the new sentence concurrent with the unexpired portion of the original sentence. Mock v. U. S. Board of Parole, 345 F.2d 737, 738 (1965); Santa v. Tippy, 14 F.3d 157, 159 (2d Cir. 1994); Ali v. District of Columbia, 612 A.2d 228, 229 (D.C. 1992).

4. Mr. xxxxxxxx was recently informed by the United States Parole Commission that the Commission does not consider the parole warrant to have been executed, as Mr. xxxxxxxx and counsel believed. The Commission's position is that the warrant was lodged against Mr. xxxxxxxx as a detainer. Therefore, according to the Commission, the back-up time has not started to run.

5. The consequence for Mr. xxxxxxxx of the Commission's position is that the court's sentencing order cannot be effectuated because the court lacked authority to run Mr. xxxxxxxx's sentence concurrent with a sentence which had not yet commenced. Santa v. Tippy, 14 F.3d at 159; Mock v. U.S. Board of Parole, 345 F.2d at 738; Tijerina v. Thornburgh, 884 F.2d 861, 864 (5th Cir. 1989).

6. Because counsel and Mr. xxxxxxxx unwittingly sought from the court a sentencing order which the court was unauthorized by law to enter, the court can correct this sentence under FED.R.CR.P. 35(a).

7. The court can correct the sentence imposed on May 30, 1996, and resentence Mr. xxxxxxxx, in order to effectuate its original sentencing scheme. Mock v. U. S. Board of Parole, 345 F.2d at 738. The court should do so, because when the court sentenced Mr. xxxxxxxx to a term of imprisonment to run concurrent with back-up time, the court intended to show him some leniency. That intention has been thwarted by the Parole Commission's position that the parole violator's warrant has not been executed and that service of the back-up time has not yet commenced. For these and any other reasons that may appear to the court at a hearing on this Motion, Mr. xxxxxxxx respectfully requests that his sentence of May 30, 1996 be vacated and that he be resentenced.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________

Reita Pendry

Assistant Federal Defender

625 Indiana Avenue, N.W. #550

Washington, D. C. 20004

(202)208-7500

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing Motion to Correct Sentence upon the Office of the U. S. Attorney for the District of Columbia, Special Proceedings Branch, by mailing a copy to that office at 555 4th Street, N.W., Washington, D. C. this 23rd day of July, 1998.

_______________________

Reita Pendry

1. The pleas followed the remand of Mr. xxxxxxxx's case to permit him to withdraw his original guilty plea because the apellate court found that his plea was induced by the ineffective assistance of his counsel. United States v. xxxxxxxx, 70 F.3d 1414 (D.C. Cir. 1995).