United States District Court, W.D. Virginia, Abingdon Division
M. Myatt, Special Assistant United States Attorney, for
Richard D. Kennedy, Wise, Virginia, and Jeremy B.
O'Quinn, Wise, Virginia, for Defendant.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE
defendant, Alfredo Cervantes, 61 years old, was sentenced by
judgment of this court entered January 9, 2019, to seven
months imprisonment, following his guilty pleas to heath care
fraud and wire fraud. His sentence was within the advisory
sentencing guideline range of four to ten months. At
sentencing, his counsel urged the court not to impose a term
of imprisonment, pointing out, among other things, that
Cervantes suffered from “diabetes, hypertension, high
cholesterol, asthma and neuropathy.” Defense Sentencing
Mem. 2, ECF No. 51. It was also asserted that he had recently
suffered a “very mild heart attack” and had a
“follow up appointment” on January 10.
Id. at 2-3.
was allowed by the court to self-report to the prison
facility designed by the Bureau of Prisons. The day after his
sentencing, on January 10, 2019, he had a heart
catheterization procedure, which showed that he had severe
coronary artery disease and a possible need for surgery. His
counsel requested a delay in reporting, which was granted.
Following coronary artery bypass surgery on March 4, 2019,
the report date was again extended by the court to not
earlier than July 5, 2019, to allow Cervantes to complete
nine weeks of cardiac rehabilitation sessions. Additional
rehabilitation was required, and a further extension was
granted by the court to not earlier than October 5, 2019.
Thereafter, Cervantes received a notice to report to the
facility designed by the Bureau of Prisons. On motion of his
counsel, I extended the date to report to not earlier than 30
days from October 15, 2019. I also granted the defendant
permission for an evidentiary hearing to allow his physician
to testify,  although I expressed doubt that I had the
power to grant the request that Cervantes' sentence now
be changed to probation on the ground that any imprisonment
would be detrimental to his ongoing medical treatment.
evidentiary hearing has yet been held, but the defendant has
now filed a second motion, seeking a modification of his
sentence to probation, relying on the writ of coram nobis or
18 U.S.C. § 3582(c)(1)(A). The United States has
federal district court generally may not correct or modify a
sentence of imprisonment once it has been imposed.
See18 U.S.C. § 3582(c). To the contrary,
“[t]he law closely guards the finality of criminal
sentences against judicial ‘change of
heart.'” United States v. Goodwyn, 596
F.3d 233, 235 (4th Cir. 2010) (citation omitted). Therefore,
the court cannot modify or reduce a sentence “unless
 the Bureau of Prisons moves for a reduction,  the
Sentencing Commission amends the applicable Guidelines range,
or  another statute or Rule 35 expressly permits the court
to do so.” Id.
writ of coram nobis, along with other common law writs, was
specifically abolished in federal civil actions by amendments
to Federal Rule of Civil Procedure Rule 60, effective in
1948. The Supreme Court has recognized, however, that the
ancient writ is still available to attack a criminal
conviction, with jurisdiction vested under the All Writs Act,
28 U.S.C. § 1651(a). United States v. Morgan,
346 U.S. 502, 511 (1954). The writ of coram nobis was
“traditionally available only to bring before the court
factual errors ‘material to the validity and regularity
of the legal proceeding itself,' such as the
defendant's being under age or having died before the
verdict.” Carlisle v. United States, 517 U.S.
416, 429 (1996) (citation omitted). As pointed out by the
United States, Cervantes' health problems were known at
the time of his sentencing and fully considered by the
court. Coram nobis does not assist the defendant.
district courts were recently given the power to reduce a
sentence pursuant to § 603(b) of the First Step Act of
2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5220
(2018) (“2018 FSA”), which amended 18 U.S.C.
§ 3582(c), expanding the circumstances under which
federal prison inmates may seek compassionate release. Prior
to the 2018 FSA, only the Director of the Bureau of Prisons
could file a motion with the court seeking compassionate
release for an inmate. However, the 2018 FSA amended §
3582(c) to provide that a sentencing court may, after
considering the sentencing factors set out in 18 U.S.C.
§ 3553(a), modify a sentence to grant compassionate
release either upon motion of the Director “or upon
motion of the defendant after the defendant has fully
exhausted all administrative rights to appeal a failure of
the Bureau of Prisons to bring a motion on the
defendant's behalf or the lapse of 30 days from the
receipt of such a request by the warden of the
defendant's facility, whichever is earlier.” §
3582(c)(1)(A). Of course, Cervantes is not yet an inmate and
has not exhausted his administrative remedies. Once he is
imprisoned, he can seek compassionate release from the Bureau
of Prisons, although I certainly do not indicate by this
advice that I would grant a motion to this court under §
3582(c)(1)(A) if Cervantes were unsuccessful in his
not aware of any provision of law that would permit the court
to now change the defendant's sentence. For these
reasons, it is ORDERED that the Motion for
Stay of Imposition or Modification of Sentence Due to Medical
Condition, ECF No. 78, and the Motion to Modify Sentence of
Defendant Upon (1) Writ of Coram Nobis and/or (2) Joinder of
and Request for Motion by the Federal Bureau of Prisons, ECF
No. 80, are DENIED.
 In a letter dated June 19, 2019, the
defendant's internist had expressed the view that
Cervantes' health “could be severely exacerbated by
incarceration, ” based upon his diabetes, heart
condition, and elevated blood pressure due to stress. Mot.
for Stay Ex. 1, ECF No. 72.
 While not relied upon as a basis for
changing the sentence, Rule 35(a) states, “Within 14
days after sentencing, the court may correct a sentence that
resulted from arithmetical, technical, or other clear
error.” Fed. R. Crim. P. 35(a). Not only would a Rule
35 motion be untimely here, but “[e]very relevant
authority agrees that the scope of ‘clear error'
correctable under Rule 35(a) is extremely narrow.”
United States v. Fields, 552 F.3d 401, 404 (4th Cir. 2009).
“A district court's authority to correct a sentence
imposed as a result of clear error is limited to cases in
which an obvious error or mistake has occurred in the
sentence, that is, errors which would almost certainly result
in a remand of the case to the trial court for further action
under Rule 35(a).” United States v. Ward, 171 F.3d 188,
191 (4th Cir. 1999) (internal quotation marks and citation
omitted); see United States v. Phillips, 194 Fed.Appx. 154,
155 (4th Cir. 2006) (unpublished) (holding that district
court erred in ...