United States v. Arrington, No. 12–3073.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSRINIVASAN
Citation763 F.3d 17
PartiesUNITED STATES of America, Appellee v. Derrek E. ARRINGTON, Appellant.
Decision Date22 August 2014
Docket NumberNo. 12–3073.

763 F.3d 17

UNITED STATES of America, Appellee
v.
Derrek E. ARRINGTON, Appellant.

No. 12–3073.

United States Court of Appeals,
District of Columbia Circuit.

Argued March 6, 2014.
Decided Aug. 22, 2014.


[763 F.3d 19]


Appeal from the United States District Court for the District of Columbia (No. 1:00–cr–00159–1).

Ben Thorpe, Student Counsel, argued the cause for appellant.
With him on the briefs were Erica Hashimoto, appointed by the court, and Dennis Vann, Student Counsel.

Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S. Attorneys.


Before: GARLAND, Chief Judge, and SRINIVASAN and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge:

Derrek E. Arrington was convicted of assaulting a federal officer and unlawfully possessing a firearm as a convicted felon. After filing an unsuccessful appeal and, inter alia, a motion for postconviction relief under 28 U.S.C. § 2255, Arrington challenged his twenty-year sentence and the consecutive terms of his supervised release under Federal Rule of Civil Procedure 60(b) and Federal Rule of Criminal Procedure 36. The district court denied both motions, and this appeal followed. We conclude that we lack jurisdiction over Arrington's appeal from the denial of his Rule 60(b) motion and therefore dismiss that portion of his appeal. We affirm the district court's denial of Arrington's Rule 36 motion because Arrington failed to assert a “clerical error” within the meaning of that rule. We further determine that 28 U.S.C. § 2106 does not authorize us to grant Arrington the relief he seeks.

[763 F.3d 20]

I.

In September 2000, a federal jury convicted Arrington on one count of assaulting a federal officer with a dangerous weapon, in violation of 18 U.S.C. § 111(b), and one count of unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). At the time of Arrington's conviction, the maximum term of imprisonment for each of those two counts was ten years. The district court sentenced Arrington to twenty years of imprisonment, to be followed by consecutive, three-year terms of supervised release for each offense. In its statement of reasons, the court explained the rationale for Arrington's sentence as follows: “Statutory maximum is 240 months.” Judgment at 7. The court also entered a supervised release order reiterating that, upon release, Arrington would “be on supervised release for a term of THREE (3) YEARS ON EACH COUNT, WHICH SHALL BE SERVED CONSECUTIVELY TO EACH OTHER, FOR A TOTAL OF SIX (6) YEARS.” Id. at 3.

On direct appeal, Arrington did not raise either of the two arguments that he asserts here: (i) that the district court failed to follow proper procedures in imposing consecutive, ten-year terms of imprisonment for each of Arrington's two counts of conviction; and (ii) that the district court unlawfully imposed consecutive terms of supervised release. This court affirmed the district court's judgment. United States v. Arrington, 309 F.3d 40 (D.C.Cir.2002), cert. denied,537 U.S. 1241, 123 S.Ct. 1373, 155 L.Ed.2d 212 (2003).

In December 2003, Arrington filed a pro se motion for post-conviction relief under 28 U.S.C. § 2255. Arrington again raised neither of the arguments on which he now relies. In April 2007, the district court denied Arrington's § 2255 motion. See Arrington v. United States, No. 00–0159, 2007 WL 1238740 (D.D.C. Apr. 26, 2007).

In June 2007, Arrington filed a new motion asking the district court to alter or amend its judgment. He argued that his twenty-year prison sentence exceeded the statutory maximum. The district court denied the motion. Initially, the court based its denial on the (mistaken) rationale that the maximum sentence for one of Arrington's offenses was in fact twenty years of imprisonment. When Arrington then sought to appeal the district court's denials of his two postconviction motions, he was required to obtain a certificate of appealability. See28 U.S.C. § 2253(c). The district court declined to issue a certificate of appealability, but used the occasion to correct its mistake concerning the maximum sentence for Arrington's offenses. The court acknowledged that the maximum for each offense at the time of Arrington's conduct was ten years, but the court emphasized that Arrington's twenty-year sentence was nonetheless lawful because it equaled the statutory maximum for consecutive sentences for the two offenses.

In March 2011, Arrington filed a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Arrington's motion argued that the district court was required to state explicitly at sentencing that it was imposing consecutive ten-year prison terms for Arrington's two counts of conviction. The district court denied the motion in April 2011, stating that Arrington was “not entitled to relief under Rule 60(b)(6)” because “the Federal Rules of Civil Procedure do not apply to criminal cases.” Order at 1 (Apr. 8, 2011), ECF No. 138.

Arrington subsequently sent a letter to the U.S. Probation Office concerning his terms of supervised release. He alerted the Probation Office that the district court

[763 F.3d 21]

had erred in sentencing him to consecutive rather than concurrent terms of supervised release. As his letter pointed out, the governing statute provides that a term of supervised release for a prisoner released by the Bureau of Prisons should “run[ ] concurrently with any ... term of probation or supervised release ... for another offense.” 18 U.S.C. § 3624(e). In October 2011, the Probation Office submitted a status report to the district court recommending that the judgment and commitment order in Arrington's case be revised to reflect that he would serve his terms of supervised release concurrently rather than consecutively. The district court faxed the report to the U.S. Attorney's Office for the District of Columbia, which responded that it would not oppose correcting the supervised release term.

In November 2011, relying on the Probation Office's status report and the U.S. Attorney's Office's response, Arrington—proceeding pro se—filed a new Rule 60(b) motion arguing that it was unlawful to impose consecutive terms of supervised release. Arrington also repeated his argument that the sentencing court was required to state expressly that it intended to impose consecutive ten-year prison terms.

In December 2011, the Federal Public Defender filed a motion on Arrington's behalf under Rule 36 of the Federal Rules of Criminal Procedure to amend the judgment and commitment order so that Arrington's terms of supervised release would run concurrently rather than consecutively. SeeFed.R.Crim.P. 36 (“[T]he 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.”). In response, the U.S. Attorney's Office reiterated its agreement that terms of supervised release cannot run consecutively, but argued that Rule 36 is not a proper vehicle for correcting the error. The U.S. Attorney's Office added that Arrington could wait until he has served at least one year of supervised release, at which time he could ask the district court to modify his term of supervised release. See18 U.S.C. § 3583(e)(1) (court may “terminate a term of supervised release ... at any time after the expiration of one year of supervised release” under certain conditions).

The district court issued an order denying relief on the Rule 36 and Rule 60(b) motions. With respect to the Rule 36 motion, the court agreed with the U.S. Attorney's Office that the rule applies only to “ ‘minor, uncontroversial errors' ” and “is not a proper vehicle to challenge a sentence on the basis that it was unlawfully imposed.” Order at 2 (July 26, 2012), ECF No. 166 (quoting Foster v. United States, 290 F.Supp.2d 5, 8 (D.D.C.2003)). The court also denied the Rule 60(b) motion, observing that it was “unaware of any procedural vehicle by which the defendant can appropriately challenge his sentence to consecutive terms of supervised release.” Id. The court noted, however, that it is “possible” that, after Arrington served at least one year of supervised release, he could seek relief by moving for early termination of supervised release under 18 U.S.C. § 3583(e)(1). See id.

Arrington appeals the district court's denial of his Rule 60(b) and Rule 36 motions. Upon his request, we appointed counsel to argue as amicus curiae in favor of his position. On appeal, Arrington and amicus counsel renew Arrington's challenges to (i) the imposition of a twenty-year term of imprisonment without an explicit statement of an intent to prescribe consecutive ten-year terms, and (ii) the imposition of consecutive (as opposed to concurrent) three-year terms of supervised release.

[763 F.3d 22]

The court thanks amicus counsel for their assistance with this case.

II.

We begin with Arrington's appeal from the denial of his November 2011 motion under Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) provides that, “[o]n motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding” for any of five specified reasons or for “any other reason that justifies relief.” Arrington's Rule 60(b) motion did not specify the final judgment, order, or proceeding from which he seeks relief. If his motion seeks to reopen direct review of the judgment in his criminal case, the motion fails at the threshold because—as the district court recognized—the Federal Rules of Civil Procedure (including Rule 60(b)) do not apply to criminal cases. SeeFed.R.Civ.P. 1; United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir.1998). But we might also understand Arrington's Rule 60(b) motion to seek whatever relief is available in connection with his...

To continue reading

Request your trial
37 practice notes
  • United States v. Palmer, No. 15-3006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 14, 2017
    ...judicial gaffes" in that sentence. United States v. McHugh , 528 F.3d 538, 540 (7th Cir. 2008) ; see also United States v. Arrington , 763 F.3d 17, 24 (D.C. Cir. 2014). Rather, the district court revised the original sentence in view of the change in the law on merger since appellant was se......
  • United States v. Springer, No. 15-5109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 13, 2017
    ...to issue a final order.Based on this "plain procedural bar," we deny Mr. Springer’s request for a COA.12 See United States v. Arrington , 763 F.3d 17, 24 (D.C. Cir. 2014) (It does not matter "that the district court summarily denied relief on procedural grounds without specifically referenc......
  • United States v. Winkles, No. 13–56376.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 31, 2015
    ...from the Supreme Court's decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). United States v. Arrington, 763 F.3d 17, 23 (D.C.Cir.2014) ; Spitznas, 464 F.3d at 1225 ; Reid, 369 F.3d at 371 ; Gonzalez, 366 F.3d at 1267. In Slack, the Court determined the stan......
  • Anariba v. Dir. Hudson Cnty. Corr. Ctr., 20-2633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 3, 2021
    ...(3d Cir. 2015) (addressing 17 F.4th 441 Rule 60(b) in the context of a habeas case arising under § 2254 ); United States v. Arrington , 763 F.3d 17, 22 (D.C. Cir. 2014) (indicating that at least six Courts of Appeals, including the D.C. Circuit, have recognized Gonzalez in the context of ca......
  • Request a trial to view additional results
37 cases
  • United States v. Palmer, No. 15-3006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 14, 2017
    ...judicial gaffes" in that sentence. United States v. McHugh , 528 F.3d 538, 540 (7th Cir. 2008) ; see also United States v. Arrington , 763 F.3d 17, 24 (D.C. Cir. 2014). Rather, the district court revised the original sentence in view of the change in the law on merger since appellant was se......
  • United States v. Springer, No. 15-5109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 13, 2017
    ...to issue a final order.Based on this "plain procedural bar," we deny Mr. Springer’s request for a COA.12 See United States v. Arrington , 763 F.3d 17, 24 (D.C. Cir. 2014) (It does not matter "that the district court summarily denied relief on procedural grounds without specifically referenc......
  • United States v. Winkles, No. 13–56376.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 31, 2015
    ...from the Supreme Court's decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). United States v. Arrington, 763 F.3d 17, 23 (D.C.Cir.2014) ; Spitznas, 464 F.3d at 1225 ; Reid, 369 F.3d at 371 ; Gonzalez, 366 F.3d at 1267. In Slack, the Court determined the stan......
  • Anariba v. Dir. Hudson Cnty. Corr. Ctr., 20-2633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 3, 2021
    ...(3d Cir. 2015) (addressing 17 F.4th 441 Rule 60(b) in the context of a habeas case arising under § 2254 ); United States v. Arrington , 763 F.3d 17, 22 (D.C. Cir. 2014) (indicating that at least six Courts of Appeals, including the D.C. Circuit, have recognized Gonzalez in the context of ca......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT