United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION TO CORRECT SENTENCE
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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
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.
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
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 ...