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United States v. Kimbrough

United States District Court, E.D. Virginia, Richmond Division

October 19, 2016

UNITED STATES OF AMERICA
v.
TION KIMBROUGH, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         This matter is before the Court on Defendant Tion Kimbrough's MOTION FOR RECONSIDERATION AND MODIFICATION OF SENTENCE (ECF No. 35) ("Defendant's Motion"). For the reasons set forth below, the Defendant's Motion will be denied.

         BACKGROUND

         Tion Kimbrough was arrested on January 8, 2009 and questioned in relation to an armed statutory burglary that occurred in the City of Richmond on January 5, 2009. (Defendant's Reply to Government's Response to Defendant's Motion for Reconsideration and Modification of Sentence 1, ECF No. 38) (hereinafter "Def. Reply"). While being interrogated by the Richmond Police Department, Kimbrough was shown still photographs taken from the surveillance tapes of a SunTrust Bank robbery that had occurred on January 5, 2009 and a Wachovia Bank robbery that had occurred on December 19, 2008. (Def. Reply 1). Kimbrough confessed to being responsible for both crimes. Id.

         On January 9, 2009, Kimbrough was charged in the Circuit Court for the City of Richmond with two counts of bank robbery, use of a firearm, and armed statutory burglary. Id., at 1-2. The two counts of bank robbery were nolle prossed on June 10, 2009, after an agreement was reached between federal and state prosecutors that the same charges would be pursued in federal court. Id. at 2. On July 9, 2009, a Federal Grand Jury indicted Kimbrough on two counts of bank robbery. (ECF No. 1).

         The statutory burglary charge remained in the State court, and, on January 13, 2010, Kimbrough entered a plea of guilty to that charge. (Def. Reply 2). The State court sentenced Kimbrough to twenty years imprisonment with ten years suspended, upon condition of twenty years of good behavior. M.. The State court also ordered that one year of the active incarceration that it imposed was to run concurrently with "any time the defendant may received [sic] in Federal Court regard [sic] the bank robbery that occurred at the Sunt rust Bank located at 3022 West Broad Street in the City of Richmond on January 5, 2009." (Def. Reply Attach. 1, ECF No. 38-1).

         While serving his state sentence, Kimbrough became aware of the federal detainer lodged against him and took the necessary action under the Interstate Agreement on Detainers Act to be brought to federal court to answer to the Indictment. (Def. Reply 2) . As a result, on June 13, 2014, a Writ of Habeas Corpus ad Prosequendum was issued in the Eastern District of Virginia, and on June 17, 2014, Kimbrough made his initial appearance in this Court. Id.

         On August 13, 2014, Kimbrough entered a plea of guilty to Count Two of the Indictment: the robbery of SunTrust Bank on January 5, 2009. Ld. In his response to the Presentence Report ("PSR"), Kimbrough made this Court aware of the State court's order that one year of the state sentence should run concurrently with any federal sentence imposed. (DEFENDANT'S POSITION ON SENTENCING 16, ECF No. 22). Based on that order, Kimbrough requested this Court to order that one year of the federal sentence would run concurrently with the state sentence that Kimbrough was already serving. Id.

         On October 27, 2014, Kimbrough was sentenced by this Court to a term of seventy-five months. (ECF No. 33). The government requested that the entirety of this sentence run consecutive to, and not concurrently with, the State court sentence. (Sent'g Hr'g. Tr. 49:12-18). Fully aware of the State court's disposition of its own case against Kimbrough on the statutory burglary charge, this Court found that a fully consecutive sentence was appropriate, and therefore ordered that the full length of the federal sentence would run consecutive to the term of imprisonment that the defendant was serving in the state system. (Def. Reply 3) . This Court additionally ordered that Kimbrough be placed on supervised release for three years, pay a special assessment of $100, and pay $3621.44 in restitution. Id.

         Subsequently, Kimbrough returned to the Circuit Court for the City of Richmond and filed a motion for a writ of Coram Vobis, requesting that the State court's judgment be modified to compensate for that court's original unfulfilled expectation that the final year of defendant's state sentence would run concurrent to the federal sentence. Ld. The State court granted Kimbrough's motion with the following order:

On motion of the defendant and by agreement of the Commonwealth, the Court hereby grants the Defendant's motion for a writ of Coram Vobis and modifies it [sic] order of January 13, 2013, to specify that one year of defendant's active sentence in state case number CR-09-1822 shall run concurrent to the sentence imposed in United States District Court on October 29, 2014 in federal case number 3:09CR220-001.

(Def. Reply Attach. 3, ECF No. 38-3). On the basis of that order, Kimbrough contacted the Virginia Department of Corrections seeking to have his release date advanced from April 2, 2018 to April 2, 2017. (Def. Reply 3). The Bureau of Prisons has since rejected Kimbrough's request, deferring to this Court's earlier order that the full length of the federal sentence run consecutive to the state term. Id.

         On June 6, 2016, Kimbrough filed by letter to this Court a Motion for Reconsideration and Modification of Sentence, requesting that one year of his federal sentence be ordered to run concurrent with his state sentence. (Def. Reply 4). Kimbrough predicates this request for the relief under Fed. R. Crim. P. 36, which authorizes a Court "to 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." ]Jd. at 5.

         In its initial response, the Government opposed this motion for modification of sentence. (ECF No. 37). After the Defendant's Reply, however, the Government requested leave of this Court to file an additional brief explaining that, in light of the Writ of Coram Vobis issued by ...


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