United States v. Eccleston ( 2013 )


Menu:
  •                                                               FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    TENTH CIRCUIT                          December 20, 2013
    Elisabeth A. Shumaker
    UNITED STATES OF AMERICA,                                                      Clerk of Court
    Plaintiff - Appellee,
    v.                                                             No. 13-2112
    (D. New Mexico)
    SEBASTIAN L. ECCLESTON,                              (D.C. No. 1:95-CR-00014-LH-2)
    Defendant - Appellant.
    ORDER
    Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
    Sebastian Eccleston recently filed a motion for rehearing, which we have construed
    to be a petition for panel rehearing and rehearing en banc. See Fed. R. App. P. 40; Fed. R.
    App. P. 35(b). So construed, the petition was reviewed by the panel of judges originally
    assigned to this matter. To the extent Eccleston requests a panel rehearing, that request is
    denied. Further, the petition was sent to all of the judges of the court who are in regular
    active service. Because no member of the panel and no judge in regular active service
    requested that the court be polled, Eccleston’s request for an en banc rehearing also is
    denied.
    The panel has determined, however, that a factual correction should be made to the
    original decision. The correction can be found on page 2. The clerk is directed to file the
    attached corrected Order & Judgment nunc pro tunc to the original filing date of
    November 25, 2013.
    Entered for the Court
    ELISABETH A. SHUMAKER, Clerk
    -2-
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS      Tenth Circuit
    TENTH CIRCUIT                      November 25, 2013
    Elisabeth A. Shumaker
    UNITED STATES OF AMERICA,                                                 Clerk of Court
    Plaintiff - Appellee,
    v.                                                            No. 13-2112
    SEBASTIAN L. ECCLESTON,                                    (D. New Mexico)
    (D.C. No. 1:95-CR-00014-LH-2)
    Defendant - Appellant.
    ORDER AND JUDGMENT*
    Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
    Several years ago in New Mexico Sebastian Eccleston murdered 18-year-old Ricky
    Comingo. Two days later, he stole a car using a sawed-off shotgun and then robbed two
    people at gunpoint. After being arrested by state law-enforcement officers, Eccleston
    pleaded guilty in state court to first-degree murder and conspiracy to commit first-degree
    murder. He pleaded guilty in federal court to carjacking, using and carrying a sawed-off
    shotgun during and in relation to carjacking, interference with commerce by threat or
    violence, and carrying a sawed-off shotgun during and in relation to interference with
    commerce.
    * The case is submitted on the briefs because the parties waived oral argument. See Fed.
    R. App. P. 34(f); 10th Cir. R. 34.1(G). This order and judgment is not binding precedent
    except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
    be cited, however, for its persuasive value consistent with Federal Rule of Appellate
    Procedure 32.1 and Tenth Circuit Rule 32.1.
    The federal court sentenced Eccleston first. It gave him 120 months on the first
    firearm count and 240 months on the second, to run consecutively, and then 57 months on
    the two remaining counts, running concurrently with each other but consecutive to the
    firearm counts for a total of 417 months. At the sentencing hearing, the district court
    adopted the probation officer’s presentence report (PSR), which recited the fact that
    Eccleston’s state plea agreement contained a provision that his state term of
    imprisonment would run concurrently with any federal term. However, the district court
    did not state at the sentencing hearing whether Eccleston’s federal sentence would run
    concurrently with or consecutively to his yet-to-be-imposed state sentence. The district
    court’s written judgment was similarly silent on that score.
    After Eccleston’s federal sentencing, the state court sentenced him to life in prison
    plus nine years. Because New Mexico was the first to take Eccleston into custody
    following his arrest, it had primary jurisdiction over him. See Weekes v. Fleming, 
    301 F.3d 1175
    , 1180 (10th Cir. 2002) (explaining the primary-jurisdiction doctrine). As a
    result, Eccleston was placed in state custody and began serving his state sentence before
    his federal sentence.
    Several years later, Eccleston filed a habeas petition in federal district court under 
    28 U.S.C. § 2241
    , arguing that his federal sentence was not being properly executed.
    Although Eccleston’s federal and state sentences were running consecutively, he believed
    he was entitled to serve those sentences concurrently in a federal facility with his time in
    state custody credited against his federal sentence. On appeal, we remanded the case to
    the district court with instructions to dismiss Eccleston’s petition with prejudice because
    -2-
    it failed to raise any viable claim. United States v. Eccleston, 
    521 F.3d 1249
    , 1251 (10th
    Cir. 2008).
    Eccleston then attempted to achieve the same result—having his state time credited
    against his federal sentence—via a different road. To that end he filed a motion under
    Federal Rule of Criminal Procedure 36 asking the district court to amend its written
    judgment to make his federal sentence concurrent with his state sentence. Rule 36
    provides, “[a]fter 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. The district court
    denied Eccleston’s motion.
    Now on appeal, Eccleston claims the district court erred in doing so. His argument
    starts with the following premise: If a district court intended a defendant’s federal
    sentence to run concurrently with a later-imposed state sentence but its written judgment
    omitted any statement to that effect, then the district court may correct that omission
    under Rule 36. Here, although the written judgment is silent on how Eccleston’s federal
    and state sentences would run, Eccleston says the district court intended the sentences to
    run concurrently. To prove it, he points to the district court’s adoption of the PSR, which
    allegedly stated that his sentences would run concurrently. As a result, Eccleston believes
    the district court should have granted his Rule 36 motion and corrected its written
    judgment to reflect its intent to run his federal and state sentences concurrently.
    We are not persuaded, however, that the district court’s adoption of the PSR proves
    so much. The PSR did not say that Eccleston’s federal and state sentences would run
    -3-
    concurrently; it merely recited the fact that Eccleston’s state plea agreement included a
    provision that his state sentence would run concurrently with his federal sentence. See
    Eccleston, 
    521 F.3d at 1251
     (“The state plea agreement provided that Mr. Eccleston’s
    state term of imprisonment would run concurrently with any federal term.”). To say the
    district court adopted that recitation in the PSR doesn’t say very much. Was the district
    court merely acknowledging the existence of a provision in Eccleston’s state plea
    agreement or using that provision to inform its decision on how to run Eccleston’s federal
    and state sentences? The answers to those questions are not readily apparent to us. In
    other words, we think the district court’s adoption of the PSR sheds little light on whether
    the district court intended to run Eccleston’s sentences concurrently or consecutively.
    Two other facts, however, do shed considerable light on the subject and persuade us
    that the district court intended Eccleston’s federal sentence to run consecutively to his
    state sentence. First, the record contains a quotation from a letter the district court wrote
    to the Bureau of Prisons stating, “[i]t was my intent at sentencing that the federal
    sentence be served consecutively to [Eccleston’s] state sentence and this remains my
    position.” R. at 199. Second, when the district court sentenced Eccleston, the law in this
    circuit was that multiple terms of imprisonment imposed at different times were
    consecutive unless the district court ordered otherwise. See United States v. Williams, 
    46 F.3d 57
    , 59 (10th Cir. 1995). Presumably aware of Williams, the district court knew that
    its silence meant Eccleston’s sentences would run consecutively.
    Because the district court intended Eccleston’s federal sentence to run consecutively
    to his state sentence, it understandably rejected Eccleston’s request to amend the written
    -4-
    judgment to make those sentences concurrent. In short, the district court denied
    Eccleston’s motion to amend because there was no error or omission to amend. We don’t
    see anything wrong with that. We therefore affirm the district court’s order denying
    Eccleston’s Rule 36 motion. We grant Eccleston’s motion to proceed in forma pauperis.
    ENTERED FOR THE COURT
    Gregory A. Phillips
    Circuit Judge
    -5-
    

Document Info

Docket Number: 13-2112

Filed Date: 12/20/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021