United States Court of Appeals, District of Columbia Circuit
Argued March 6, 2014
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 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 post-conviction 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.
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, 353 U.S.App.D.C. 388 (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 post-conviction motions, he was required to obtain a certificate of appealability. See 28 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 ...