United States v. Smith , 141 F. App'x 767 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 28, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-3136
v. (D.C. No. 95-CR-10079-JTM)
ANTHONY S. SMITH, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining Defendant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Defendant appeals the district court’s denial of his Rule 36 motion to
correct his sentence. The district court held that it was without jurisdiction to
consider the motion. Rec., Vol. I, Tab 26, at 2 (Dist. Ct. Order). Rule 36 of the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Federal Rules of Criminal Procedure gives courts discretion to “correct a clerical
error in a judgment, order, or other part of the record . . . .” Fed. R. Crim. P. 36.
However, Defendant’s claim of clerical error is somewhat misleading because the
gravamen of his complaint asserts that he is not receiving credit for one day he
served while in federal custody; Defendant seeks “credit for time detained in
federal custody from 2-22-96 to 6-13-97, and not from 2-23-96.” Aplt. Br. At 2.
Defendant effectively requested that the district court compute the amount
of time he served in federal custody. 1 The federal judiciary is without jurisdiction
to correct such complaints. Credit for time served “must be made by the Attorney
General, through the Bureau of Prisons, after sentencing.” See United States v.
Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994) (citation omitted); see also United
States v. Brann, 990 F.2d 98, 104 (3d Cir. 1993) (explaining that “district courts
do not have jurisdiction to grant credit for prior custody”). 2 The district court did
1
On two separate occasions Defendant requested that this court supplement
the record on appeal. We grant both of his requests.
2
In addition, Defendant failed to establish through record evidence that the
Bureau of Prisons treats Defendant’s time spent in federal custody as beginning
on February 23, 1996, as opposed to February 22, 1996. This is a fatal defect in
Defendant’s appeal. United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8
(10th Cir. 1997) (refusing to consider an argument on appeal because the
appellant failed to reference the record in his brief and “the court [would] not
‘sift through’ the record to find support for the claimant’s arguments”) (citing
SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992)).
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not abuse its discretion in so holding. 3
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
3
Defendant’s Motion to Expedite Appeal is denied as moot.
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