ALD-151 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3554
___________
UNITED STATES OF AMERICA
v.
CLIFTON SAVAGE,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-09-cr-00600-001)
District Judge: Honorable Berle M. Schiller
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
March 15, 2018
Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: September 28, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Clifton Savage appeals the District Court’s denial of his motion to
correct a clerical error. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the
reasons that follow, we will summarily affirm the judgment of the District Court.
In 2010, Savage was convicted by a jury of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922 (g)(1). On January 3, 2011, he was sentenced under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), to 180 months’ imprisonment. In
2017, Savage filed a motion to correct a clerical error, arguing that his “release date has
been gravely miscalculated” by the Bureau of Prisons because the written judgment and
commitment order did not indicate when his federal sentence was to begin. He requested
that the District Court clarify the judgment to indicate when the sentence was to
commence “so that this error can be promptly corrected.” The Government responded
that, because the judgment and commitment order was silent on the matter, the federal
sentence was calculated to run consecutive to a previously imposed state sentence, from
which Savage was paroled on December 30, 2015. See 18 U.S.C. § 3584(a) (where a
federal sentencing court’s judgment is silent on whether the federal sentence was to be
consecutive or concurrent, the default presumption is consecutive sentences). It argued
that the motion should be denied because Savage was attempting to challenge the length
of his confinement, for which 28 U.S.C. § 2241 was the proper vehicle, and for which he
must first exhaust his administrative remedies. The District Court denied the motion
without an opinion, and this timely appeal ensued.
2
As captioned, Savage’s motion sought to “correct [a] clerical error.” In support
thereof, Savage argued that his sentence was “miscalculated” to begin “5 years after the
Court imposed,” and he repeatedly stated that the written judgment was in “error.”1
Although the motion was not entirely explicit, when construed liberally, it seeks to have
the written judgment corrected to reflect that Savage’s sentence, as imposed, was to run
concurrently with his state sentence. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.
2003) (stating the general rule that courts are to liberally construe pro se litigants’
pleadings). Such a motion is properly construed as brought pursuant to Fed. R. Crim. P.
36, “the “clerical error” rule.2
A court may at any time “correct a clerical error in a judgment.” Fed. R. Crim. P.
36. “A clerical error involves a failure to accurately record a statement or action by the
court or one of the parties.” United States v. Bennett, 423 F.3d 271, 277–78 (3d Cir.
2005) (quoting 26 James Wm. Moore et al., Moore's Federal Practice ¶ 636.02[2] (3d ed.
filed through 2005)). As we have explained, “Rule 36 is normally used to correct a
written judgment of sentence to conform to the oral sentence pronounced by the judge.”
1
In a reply to the Government’s response, filed after the District Court’s order was
entered denying the motion, Savage argued that the Government misconstrued his
motion, and that he “is simply requesting the Court to state for the record when his
sentence commenced to correct a current error.”
2
We have yet to articulate a standard of review for the denial of a Rule 36 motion in a
precedential opinion. Although there is disagreement among the courts of appeal, see,
e.g., United States v. Niemiec, 689 F.2d 688, 693 (7th Cir. 1982) (abuse of discretion);
United States v. Dickie, 752 F.2d 1398, 1402 (9th Cir. 1985) (clearly erroneous); (United
States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (plenary review), we need not
resolve that issue here because under any available standard we would affirm.
3
Id. at 278; see also United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991) (noting the
“firmly established and settled principle of federal criminal law that an orally pronounced
sentence controls over a judgment and commitment order when the two conflict”)
(citation omitted). We have recognized that the failure of a judgment and commitment
order to reflect a clear pronouncement at oral sentencing regarding whether a federal
sentence is either to be consecutive or concurrent to another sentence is a clerical error,
which is within the ambit of Rule 36’s power to correct. See id.
We find no evidence of a clerical error in this record. At the sentencing hearing,
there was no oral argument made, nor did the District Court directly discuss whether the
federal sentence should run concurrent with or consecutive to the state sentence. At the
close of the hearing, the Court stated, “I’m ordering that the sentence I’ve just imposed
be executed immediately, and you are to begin serving the sentence I imposed on you.
Any recommendations as to where he should serve it?” District Ct. Docket #77, pg. 31.
While the first two statements could be an indication that the federal sentence was to run
concurrent with the state sentence, the question that followed could suggest that the
District Court was unaware of the state sentence. At best, the sentencing transcript is
ambiguous as to whether the District Court intended for the federal sentence to run
concurrent with or consecutive to the state sentence. Accordingly, the judgment and
commitment order’s silence on the matter was not an error, and, therefore, the District
Court properly denied the Rule 36 motion. Cf. United States v. Medina-Mora, 796 F.3d
698, 700 (7th Cir. 2015) (“Because the written judgment failed to capture accurately the
4
unambiguous oral pronouncement, Rule 36 allows for correction of such a clerical error
at any time.”).3
Because no “substantial question” is presented as to the denial of the “motion to
correct clerical error,” we will summarily affirm the judgment of the District Court. See
3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
3
We note that, to the extent the motion could have been construed as a § 2241 petition,
the District Court lacked jurisdiction to consider it because Savage is confined in the
District of New Jersey. See 28 U.S.C. § 2241; Rumsfeld v. Padilla, 542 U.S. 426, 442-43
(2004) (holding that § 2241 petitions must be filed in district of confinement).
5