United States District Court, D. South Carolina, Columbia Division
CAMERON McGOWAN CURRIE, Senior District Judge.
This matter is before the court pursuant to Defendant's pro se motion seeking to have the "miscomputation [sic] in sentence" corrected to "remov[e]  the career criminal enhancement." ECF No. 54. Defendant contends this court committed error based upon the holding of United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013).
To the extent Defendant's motion is construed as a motion for modification of sentence, Rule 35(a) of the Federal Rules of Criminal Procedure permits a court to "correct a sentence that resulted from arithmetical, technical, or other clear error" within fourteen days after the oral announcement of the sentence. See Rules 35(a) and (c), Fed.R.Crim.P. The sentence was orally announced on June 27, 2012, and, accordingly, the deadline for any action by the court on a Rule 35(a) motion has passed. Therefore, the court is without jurisdiction to act upon Defendant's motion in this regard.
Apart from Rule 35(a), a district court has no jurisdiction to alter a defendant's term of imprisonment except as authorized by 18 U.S.C. § 3582 or 18 U.S.C. § 3742.
Title 18 United States Code § 3582(c) limits the court's authority to modify a final judgment that includes a sentence of imprisonment to three specific circumstances. See 18 U.S.C. § 3582(c) (the court can modify a judgment (1) upon motion of the Director of the Bureau of Prisons ("BOP") for statutorily-specified reasons, (2) upon motion of the government for substantial assistance, or (3) upon motion of the defendant or the BOP, or upon the court's own motion, because of a subsequent lowering of the applicable sentencing range). None of these circumstances applies to Defendant.
After an appeal, the court can modify a sentence if the sentence is found by the appellate court to have been imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, as provided for in 18 U.S.C. § 3742. Defendant has not appealed his conviction or sentence.
Defendant's motion does not allege that any of these circumstances applies. The court lacks jurisdiction to modify Defendant's sentence, and therefore, Defendant's letter, construed as a motion to modify sentence, is dismissed for lack of jurisdiction.
Defendant also challenges the imposition of his sentence as procedurally unreasonable. Accordingly, Defendant's motion is, in reality, a motion for relief under 28 U.S.C. § 2255. "[A] motion directly attacking the prisoner's conviction or sentence will usually amount to" a § 2255 motion. United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003).
If this court construes this motion as one for relief under § 2255, Defendant should be given the opportunity to either withdraw this motion, or amend it to include all grounds he wishes to raise in a § 2255 motion, as several consequences result from the filing and consideration on the merits of a § 2255 motion. Castro v. United States, 540 U.S. 375, 377 (2003).
Because these limitations affect future filings by Defendant if this court proceeds with the presently-filed motion as one for relief under § 2255, the court notifies Defendant of its intent to construe the motion filed September 11, 2014, as a motion for relief under § 2255. Defendant shall either move to withdraw the motion if he so chooses, or ...