USA v. Margerum

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
TODD ALLEN MARGERUM,
Defendant.
Case No. 3:17-cr-00160-SLG
ORDER REGARDING MOTION TO AMEND CRIMINAL JUDGMENT
Before the Court at Docket 64 is defendant Todd Allen Margerum’s pro se
Motion to Amend or Correct Judgment in a Criminal Case. The government
responded in opposition at Docket 65.
Mr. Margerum seeks to have the Court issue an amended judgment
pursuant to Federal Rule of Criminal Procedure 36 “to accurately reflect that Mr.
Margerum was entitled to concurrent sentence with his Alaska state sentence
consistent with U.S.S.G. 5G1.3(b) or (c), thus, Defendant is to receive pretrial
detention credit and his 1 year 1 day federal sentence imposed by this Court was
COMPLETED on July 30, 2019, in the matter herein.”1 Put simply, Mr. Margerum
asserts that the Court gave him credit for 2 months and 23 days in pretrial custody
1 Docket 64 at 4.
Case 3:17-cr-00160-SLG-DMS Document 69 Filed 08/23/21 Page 1 of 4

No. 3:17-cr-00160-SLG, United States v. Margerum
Order Re Motion to Amend Criminal Judgment
Page 2 of 4
and that because his state and federal sentences should have run concurrently,
he calculates that his federal sentence expired on July 20, 2019.2 The Bureau of
Prisons calculates Mr. Margerum’s anticipated release date as February 4, 2022.3
After being indicted by a grand jury, a Writ of Habeas Corpus ad
Prosequendum was issued to the State of Alaska Department of Corrections to
bring Mr. Margerum to federal court for his arraignment.4 After his arraignment in
federal court, Mr. Margerum spent approximately 2 months and 23 days in custody
at the state Department of Corrections before being granted pretrial release in this
federal case.5 On August 15, 2018, Mr. Margerum was sentenced in this case to
12 months and one day.6 Mr. Margerum was ordered to self-surrender to begin
his federal sentence, but he failed to do so.7 In October 2018, Mr. Margerum was
charged in multiple criminal cases in Alaska state court.8 On February 8, 2019,
Mr. Margerum appeared before a federal magistrate judge and was ordered to
serve his original sentence.9 The magistrate judge ordered that “[f]or the purpose
2 Docket 64 at 3.
3 BOP, Find an inmate, available at www.bop.gov/inmateloc/ (last accessed Aug. 17, 2021).
4 Docket 4.
5 Docket 9; Docket 23.
6 Docket 52 (judgment).
7 Docket 54.
8 Docket 65 at 2.
9 Docket 62 (minute entry).
Case 3:17-cr-00160-SLG-DMS Document 69 Filed 08/23/21 Page 2 of 4

No. 3:17-cr-00160-SLG, United States v. Margerum
Order Re Motion to Amend Criminal Judgment
Page 3 of 4
of computing his federal sentence, this Court finds Todd Allen Margerum was in
federal custody from the date of the Writ of Habeas Corpus ad Prosequendum
issued December 11, 2018,” which issued after Mr. Margerum had failed to report
to serve his sentence.10
The government opposes the instant motion because Mr. Margerum “has
been in State of Alaska custody since on or around October 30, 2018. That
custody continued until at least March 26, 2021.”11 The government contends that
the Court should not now approve concurrent federal and state custody time
because Mr. Margerum’s “State of Alaska cases are not concurrent or connected
to the defendant’s sentence” in this case.”12
Rule 36 permits courts to “correct a clerical error in a judgment . . . or correct
an error in the record arising from oversight or omission.” It appears that the
perceived discrepancy in calculating Mr. Margerum’s federal release date is not
primarily related to whether he is getting credit for his pretrial detention time but is
instead related to the time he has been serving in state custody related to his state
court cases. Accordingly, Rule 36 does not authorize the Court to amend the
judgment in this case, because there is no “clerical error,” “oversight,” or “omission”
to correct.13 The judgment issued by the Court accurately reflects the sentence
10 Docket 61.
11 Docket 65 at 2.
12 Docket 65 at 3.
13 See United States v. Sanchez, 585 Fed. Appx. 716, 716 (9th Cir. 2014) (unpublished) (“[T]he
Case 3:17-cr-00160-SLG-DMS Document 69 Filed 08/23/21 Page 3 of 4

No. 3:17-cr-00160-SLG, United States v. Margerum
Order Re Motion to Amend Criminal Judgment
Page 4 of 4
imposed. Rule 36 does not authorize the relief Mr. Margerum seeks, to wit the
Court making retroactive § 5G1.3 findings, which would not merely correct a
clerical error to show what sentence was in fact imposed, but instead would
substantively modify a sentence.14
In light of the foregoing, IT IS ORDERED that the motion at Docket 64 is
DENIED.
DATED this 23rd day of August, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
district court properly denied Sanchez’s Rule 36 motion because there was no error in the
judgment to correct. To the extent Sanchez argues that the district court erred in failing to run
the sentences fully concurrently under U.S.S.G. 5G1.3, Rule 36 does not provide a vehicle for
relief.”).
14 United States v. Penna, 319 F.3d 509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for correcting
clerical mistakes but it may not be used to correct judicial errors in sentencing.”); United States
v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985) (“The district court has no discretionary authority
under Rule 36 to correct its own errors in imposing an otherwise valid sentence.”); Pacheco v.
United States, Case No. CR-01-20050-JW, 2011 WL 5515509, at *2 (N.D. Cal. Nov. 10, 2011)
(finding that when defendant moved pursuant to Rule 36 to amend a judgment to reflect a
consecutive sentence with a state court sentence, the defendant’s “request goes far beyond the
correction of a mere clerical error; he asks the court to correct an alleged judicial error in
sentencing.” (emphasis in original)). Cf. United States v. Felton, Case No. CR 18-63-BLG-SPW,
2020 WL 6270796, at *1 (D. Mont. Oct. 26, 2020 (“The Court did not intend to make the federal
sentence concurrent with any later-imposed state sentence. The judgment accurately reflects
the Court’s intent at the time of sentencing. There is nothing to correct under Rule 36.”).
The cases cited by Mr. Margerum are not applicable here. See Docket 64 at 4. Overton was a
28 U.S.C. § 2255 habeas case. Smith involved a district court using Rule 36 to adjust a
sentence to account for time that the BOP had not credited the defendant even though the
judgment listed concurrent time. Gibson involved a stipulated “clerical error” that resulted in the
BOP not running part of a sentence concurrently. Moreover, none of cases were bound by the
Ninth Circuit’s precedent limiting the use of Rule 36 because they are from other circuits.
Case 3:17-cr-00160-SLG-DMS Document 69 Filed 08/23/21 Page 4 of 4