United States District Court, D. Minnesota
Eugene Ingram, Petitioner-Defendant, Pro Se.
Jeffrey S. Paulsen, Assistant United States Attorney, United
States Attorney's Office, counsel for the Government.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner-Defendant Milton
Eugene Ingram's (“Petitioner-Defendant”)
pro se motion to correct a clerical error of record
in connection to his 2015 sentence pursuant to Federal Rule
of Criminal Procedure 36 (“Rule 36”). (Doc. No.
560.) The United States of America (the
“Government”) opposes Petitioner-Defendant's
motion. (Doc. No. 563.)
February 20, 2019, Petitioner-Defendant filed a “Motion
Under Fed. R. Crim. P. Rule 36 to Correct Clerical Error of
Record.” (Doc. No. 560.) Petitioner-Defendant asserts
that two of the previous sentences used to calculate his
criminal history score were incorrectly counted separately,
resulting in an erroneous additional point. The Government
opposes Petitioner-Defendant's motion on two grounds. If,
as Petitioner-Defendant alleges, the sentences were
improperly added to his criminal history score, the
Government notes that that would not be a clerical error
per se but a substantive mistake that should have
been raised on direct appeal. Moreover, the Government
contends that no mistake was made in the calculation of
Petitioner-Defendant's criminal history score.
reasons set forth below, the Court denies
December 7, 2015, Petitioner-Defendant was convicted of a
sole count of conspiracy to distribute heroin in violation of
21 U.S.C. §§ 846 and 841(b)(1)(A) (Count 1)
following entry of a guilty plea on February 17, 2015. (Doc.
Nos. 416, 208.) This Court sentenced Petitioner-Defendant to
the mandatory minimum sentence of 10 years imprisonment, as
well as 5 years of supervised release and a $100 special
assessment. (Doc. No. 416.) This sentence was anticipated by
the parties, as set forth in the plea agreement, on the basis
of an adjusted offense level of 27 (base offense level of 30,
minus 3 points for acceptance of responsibility) and a
criminal history category of III which resulted in an
advisory guideline range of 87 to 108 months; a 10-year
(120-month) mandatory minimum penalty applied absent a
downward departure for substantial assistance.
Court previously denied Petitioner-Defendant's motion to
set aside, vacate or correct his sentence under 28 U.S.C.
§ 2255 on the grounds that his counsel did not fail to
provide effective assistance as alleged. (Doc. Nos. 514, 518,
523.) As the Court explained in its analysis of
Petitioner-Defendant's earlier motion, “the point
for each conviction was properly assigned.” (Doc. No.
523 at 7.) While Petitioner-Defendant's allegations
differed slightly in his previous motion, this Court's
earlier conclusion stands.
Presentence Investigation Report
same hearing in which Petitioner-Defendant entered his guilty
plea, a Presentence Investigation Report (“PSR”)
was requested. (Doc. No. 208.) This sealed document was filed
on August 28, 2015. (Doc. No. 347.) The PSR was provided to
the parties prior to sentencing, and both filed responses
accordingly. (Doc. Nos. 378, 384.) The PSR accounted for
Petitioner-Defendant's prior sentences in his criminal
history, adding one point for each of the sentences in
question: the first for Misdemeanor Battery with a date of
referral of April 23, 2009, and the second for Misdemeanor
Theft with a referral date of June 8, 2009. (PSR ¶¶
66, 67.) Petitioner-Defendant was sentenced in both matters
on August 19, 2009. (Id.)
Petitioner-Defendant's Relevant Arrest History
argues that because his two misdemeanor convictions were
“consolidated” for sentencing purposes, they were
wrongly counted as separate convictions in the ...