Ortiz v. United States

• Court: District Court, W.D. Washington
• Decided: September 4, 2019
• Docket: 2:15-cv-00863
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 RICHARD ANTHONY ORTIZ, Case No. 2:15-CV-863-RSL 10 Petitioner, ORDER DENYING 11 v. PETITIONER’S MOTION 12 PURSUANT TO FEDERAL UNITED STATES OF AMERICA, RULE OF CRIMINAL 13 PROCEDURE 36 Respondent. 14 15 This matter comes before the Court on a statement filed by petitioner Richard Anthony 16 Ortiz on July 19, 2019. Dkt. #14. Petitioner requests that the judgment issued against him be 17 amended to correct a clerical error. Id. The Court construes this as a motion pursuant to Federal 18 Rule of Criminal Procedure 36. 19 On May 16, 2013, petitioner was found guilty of Conspiracy to Distribute Heroin and/or 20 Methamphetamine and Possession of Heroin with Intent to Distribute. United States of America 21 v. Richard A. Ortiz, 2:12-cr-00062-RSL-28 (“Criminal Case”), Dkt. #954; see 21 U.S.C. §§ 22 841(a)(1), 841(b)(1)(A), 846. He was sentenced on December 13, 2013 to a total of 180 months, 23 and a special assessment fee of $200 was imposed. Criminal Case, Dkt. #1196. The conviction 24 was affirmed by the Ninth Circuit on January 23, 2015. Criminal Case, Dkt. #1360. Petitioner 25 then filed a motion under 28 U.S.C. § 2255 on June 1, 2015. Dkt. #1. This was denied on 26 December 8, 2015. Dkt. #13. Petitioner filed this motion more than four years later arguing that 27 the special assessment fee should not have exceeded $100 because he was serving concurrent 28 1 sentences on each of his offenses. Dkt. #14. He requests that the “clerical error” be corrected 2 pursuant to Federal Rule of Criminal Procedure 36. Id. at 4. 3 “The provisions of Rule 36 do not permit a substantive change in the period of 4 incarceration which the defendant must serve. A change made under [Rule] 36 can do no more 5 than conform the sentence to the term which the record indicates was intended.” United States v. 6 Kaye, 739 F.2d 488, 490 (9th Cir. 1984). What petitioner seeks is not a correction of a clerical 7 error, but a substantive change to his sentence. See U.S.A. v. Thompson, No. CR 03-00847- 8 ABC, 2015 WL 13722858, at *3 (C.D. Cal. May 6, 2015) (“Rule 36 allows the Court to correct 9 only clerical errors. … Here, in contrast, Defendant asks us to make a substantive change to his 10 sentence by significantly reducing the special assessment fee imposed. … Defendant argues that 11 the sentencing Judge erred in calculating the special assessment fee. … In so doing, Defendant 12 claims a judicial error, which cannot be remedied by Rule 36.”). Nor does petitioner give any 13 explanation for why he has raised this issue four years after the denial of his 28 U.S.C. § 2255 14 motion and five and a half years after the sentence was imposed. Accordingly, the Court denies 15 the motion without reaching the merits of petitioner’s claim. See id. 16 For all the foregoing reasons, petitioner’s motion is DENIED. 17 18 DATED this 4th day of September, 2019. 19 20 A 21 Robert S. Lasnik 22 United States District Judge

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