United States v. Foy
672 F. App'x 784
| 10th Cir. | 2016Background
- In 2008–2009 Foy pleaded guilty in federal court to possession of child pornography and signed a plea agreement recommending 10 years’ imprisonment and lifetime supervised release; the plea agreement said nothing about state charges or whether sentences would run concurrently or consecutively.
- State charges for sexual abuse of the same minors were pending in Utah; parties referenced a “global resolution” at the plea hearing, but no express agreement about concurrent or consecutive service was placed on the record.
- The federal court sentenced Foy to 10 years imprisonment (with lifetime supervised release) in May 2009 and did not state whether the federal sentence would run concurrent with or consecutive to any state sentence.
- The state court later imposed a state sentence and ordered it to run concurrently with the federal sentence; Foy was released from state custody into federal custody in May 2012.
- In 2015 Foy filed a pro se motion under Fed. R. Crim. P. 36 asking the district court to “correct” the federal judgment to reflect concurrent service and to credit him for time served in state custody; the district court amended the judgment to state the federal sentence runs consecutively to the state sentence and denied Foy’s requested relief.
- Foy appealed; the Tenth Circuit affirmed, holding Rule 36 does not authorize substantive modification to order federal and state sentences concurrent where the original judgment was silent and federal law presumes consecutive service.
Issues
| Issue | Foy's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court could use Rule 36 to "correct" the federal judgment so the federal sentence runs concurrent with the state sentence | Foy argued the omission was an oversight and Rule 36 authorizes correcting clerical errors to make the federal sentence concurrent | Government argued the omission did not reflect a clerical error; Rule 36 cannot be used to substantively modify a sentence or create concurrency where none was ordered | Held: Rule 36 cannot be used to change substantive sentencing terms; court properly denied relief and ruled sentences are consecutive absent an affirmative order of concurrency |
| Whether Foy was entitled to credit for time served in state custody because the state court ordered concurrent service | Foy argued he should receive credit for time spent in state custody since the state ordered concurrent service | Government argued federal judgment governs federal credit and the federal court’s silence meant sentences run consecutively under 18 U.S.C. § 3584(a); the state court cannot unilaterally affect federal sentencing | Held: The state court’s concurrent order cannot alter the federal sentence; because the federal judgment was silent, federal law presumes consecutive sentences and Foy is not entitled to federal credit for state time |
Key Cases Cited
- United States v. Eccleston, 521 F.3d 1249 (10th Cir. 2008) (treats separate state and federal sentences as imposed at different times and a silent federal judgment triggers presumption of consecutive service)
- United States v. Williams, 46 F.3d 57 (10th Cir. 1995) (district court may order a federal sentence consecutive to a state sentence not yet imposed)
- United States v. Blackwell, 81 F.3d 945 (10th Cir. 1996) (Rule 36 does not authorize substantive modification of a sentence; it is limited to clerical corrections)