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United States v. Gotch

United States District Court, D. South Dakota, Southern Division

July 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHAD MICHAEL GOTCH, Defendant.

          ORDER DENYING MOTION TO CORRECT SENTENCE

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Defendant, Chad Michael Gotch, moves to correct the sentence entered by this court on June 20, 2017. Docket 268. Defendant contends that the written judgment entered by the court (Docket 260) is inconsistent with the oral pronouncement of the sentence at defendant's sentencing hearing. Id. Plaintiff, the United States, opposes the defendant's motion. Docket 272. For the reasons that follow, the court denies the defendant's motion.

         BACKGROUND

         Defendant's sentencing hearing was held on Monday, June 19, 2017. Docket 254. At the hearing, the court asked the parties to specifically address whether defendant's federal sentence should run consecutive to or concurrent to the defendant's eight-year sentence imposed by the First Judicial Circuit of Union County, South Dakota, for a parole revocation on a theft related conviction. Docket 266 at 16-17. As the court observed, “Application Note 4 of 5G1.3 says the Sentencing Commission recommends that it be consecutive. But I wanted to hear both of your opinions.” Id. at 17. In response to that request, defendant argued that his federal sentence should run concurrent to his state sentence, id. at 17-19, and plaintiff argued that the court “follow the guideline's suggestion” and run the federal and state sentences consecutively. Id. at 18.

         After listening to the parties' arguments-but before orally pronouncing defendant's sentence-the court described its view of whether defendant's federal sentence should run concurrent to or consecutive to his state sentence. Id. at 19-20. In doing so, the court remarked that while the court would normally run the federal sentence consecutive to the state parole revocation sentence, “because of the length of time that I'm going to impose today, I am going to run [the federal sentence] concurrent in full.” Id.

         The court then compared defendant's role in the drug conspiracy to that of his co-defendants. Id. at 20-22. In the court's view, because defendant was in the middle tier of culpability among the six co-defendants, his sentence should be around the 240 months that co-defendant Robert Joseph Budihas received and that co-defendant Larry Delbert Gotch, Jr. was scheduled to receive due to applicable mandatory minimums. Id. at 21. The court did, however, acknowledge that defendant “tried to end [his] role [in the conspiracy] before everything collapsed.” Id. As such, the court sentenced defendant at the bottom of his advisory guideline range and orally pronounced defendant's sentence:

Pursuant to the statutory and constitutional authority vested in this Court, it's the judgment of the Court that the Defendant, Chad Michael Gotch, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 235 months on Count 1 and 235 months on Count 2 to run concurrent.
Both terms of imprisonment will run concurrent with the custody term imposed in file number 09-432A0 in the First Judicial Circuit Court of Union County, South Dakota.

Id. at 22. Both parties acknowledged they were unaware of any reason why the sentence could not be imposed as stated by the court. Id. at 24.

         After the court advised defendant that in his plea agreement he waived his right to appeal unless the court sentenced defendant higher than his advisory guideline range, id., defendant asked for clarification of whether his sentence ran concurrent from the date of his arrest with regard to his South Dakota state parole revocation sentence. Id. at 25. Defendant's attorney, Mr. Ryan Kolbeck, added to defendant's question by explaining that he previously informed defendant that it was his understanding that defendant's federal sentence would run concurrent to his South Dakota state parole revocation sentence and that the Bureau of Prisons (BOP) would calculate the time concurrent from the date of defendant's arrest on the South Dakota state parole revocation sentence. Id. Then, after determining that defendant was before the court on a writ of habeas corpus from the State of South Dakota, the court, defendant and his attorney Mr. Kolbeck, United States Probation Officer (USPO) Brent Hubers, and Assistant United States Attorney John Haak, clarified the court's sentence in the following conversation:

THE COURT: So he [(defendant)] only gets credit for the time that he's in federal custody and then concurrent as of today on.
MR. KOLBECK: Okay. We'll talk about that.
THE COURT: Mr. Hubers, is that right?
USPO HUBERS: As is stated on the record, yes, your Honor, the sentence will run concurrent from here on out if ...

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