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United States v. Dillman

United States District Court, W.D. Virginia, Harrisonburg Division

December 24, 2019

UNITED STATES OF AMERICA
v.
BARNETT SOUTHALL DILLMAN Jr., Defendant

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge

         On July 19, 2019, defendant Barnett Southall Dillman, Jr., represented by counsel, filed a motion to correct a clerical error in the presentence investigation report ("PSR") prepared in his case in 2013, to which the government responded. ECF Nos. 178, 181. For the reasons discussed more fully below, the court DENIES Dillman's motion.

         I. Background

         On August 27, 2012, Dillman entered into a plea agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure in which he pled guilty to Count 1 of a Superseding Indictment that charged him with conspiring to possess with intent to distribute and distributing one kilogram or more of phencyclidine ('TCP") and 280 grams or more of cocaine base. In addition, the government had filed an information pursuant to 21 U.S.C. § 851, subjecting Dillman to an increased penalty. Dillman agreed and stipulated that he had been convicted of felony possession with intent to distribute cocaine in Prince George's County, Maryland in 2002. ECF No. 52 at 3. Dillman entered his guilty plea the same day. ECF No. 51.

         The PSR classified Dillman as a career offender and calculated his total offense level at 34 and his criminal history category as VI, which resulted in a Sentencing Guidelines range of 262 to 327 months. He faced a statutory minimum of 20 years. The government sought an upward variance to 480 months based in part upon the fact that Dillman had sold PCP to a person who ingested it and then caused an automobile accident that resulted in the death of a 23-year-old woman.

         On April 24, 2013, Dillman was sentenced to incarceration for 420 months to be followed by a 10-year term of supervised release. ECF Nos. 98, 103. On April 15, 2015, Dillman's sentence was reduced to 210 months based on a substantial assistance motion filed by the government. ECF No. 143.

         Dillman is now before the court arguing that the PSR in his case classified him as a career offender on the basis of three prior felony convictions and that the classification was a mistake. He asserts that the mistake is subject to correction under Rule 36 of the Federal Rules . of Criminal Procedure and that if it is corrected and he is no longer considered a career offender, he will be entitled to a sentence of time served and immediate release. He makes similar arguments with regard to the prior state court convictions being used to calculate criminal history points and as a basis for the § 851 enhancement in his case. The government counters that even if a mistake were made in the PSR, Rule 36 is not the correct procedural mechanism to correct the error.

         II. Analysis

         A. Rule 36 and Career Offender Guidelines

         Rule 36 of the Federal Rules of Criminal Procedure provides that "[A]fter giving any notice it considers appropriate, the 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 an oversight or omission." Rule 36 may serve as a means for a defendant to obtain resentencing when a clerical error "likely resulted in the imposition of a longer sentence than would have been imposed absent the error." United States v. Vanderhorst. 927 F.3d 824, 827 (4th Cir. 2019) (citing United States v. Powell. 266 Fed.Appx. 263, 265 (4th Cir. 2008)). While finality in judicial proceedings is an important interest and requires that judicial and substantive errors be laid to rest after specified time periods, when an error is purely clerical, like a scrivener's error, or recording error, '"the policy of finality is trumped and a court is authorized to correct the error at any time."' Id. (citing Powell, 266 Fed.Appx. at 265-266) (emphasis in original). "Forcing a defendant... to spend years longer in prison solely due to a data entry error for which he had no responsibility serves no legal, judicial, or public interest, is manifestly unjust, and is why Rule 36 exists." Id. In addition, "[t]here is no dispute that a PSR ... constitutes an 'other part of the record' amenable to correction under Rule 36." Id. at 826.

         In order to qualify as a career offender under the sentencing guidelines, a defendant must have two prior felony convictions for either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. In Vanderhorst. the petitioner filed a Rule 36 motion to challenge a statement in his PSR that four of his predicate offenses were "controlled substance offenses," making him subject to a career offender designation under U.S.S.G. § 4B1.1. The offenses," making him subject to a career offender designation under U.S.S.G. § 4B1.1. The court found that one of die diree predicate offenses cited in the PSR was "tainted by clerical error" because it was incorrectly characterized as "conspiracy to sell and deliver cocaine" when he actually had been convicted of "conspiracy to traffick cocaine by transportation." Vanderhorst, 927 F.3d at 826. The error in the PSR was attributable to an improper description of the offense in the state court electronic database. Id.

         But even eliminating the tainted predicate offense, Vanderhorst still had three remaining prior convictions which were sufficient to support application of the career offender guideline. Id. at 828. Vanderhorst argued that two of the prior convictions for "trafficking heroin by possession" and "trafficking heroin by transportation" did not constitute "controlled substance offenses" because they did not require the "'manufacture, import, export, distribution, or dispensing'" of a controlled substance. Vanderhorst. 927 F.3d at 828 (citing U.S.S.G. § 4Bl.2(b)). However, the court found that Vanderhorst was making a substantive argument that he could have raised but did not at his original sentencing. Id. at 828. Thus, his challenges to the characterization of his prior heroin trafficking convictions were not cognizable under Rule 36. Id.

         C. Application of Rule 36 to Dillman's Case

         In this case, Dillman argues that the PSR erroneously concluded that he was a career offender based on two prior convictions for possession with intent to deliver cocaine in Prince George's County, Maryland, and one conviction for distribution of cocaine in Prince George's County, Maryland. On the first possession with intent to deliver offense he was arrested on July 26, 2002 and convicted on March 14, 2003. On the second distribution offense he was arrested on July 23, 2005 and ...


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