United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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.
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.
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).
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
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.
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.
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.
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
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.
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.
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 ...