United States v. Herbert, 5:97-cr-30024

Defendant Todd A. Herbert was convicted in 1998 of conspiracy to distribute cocaine base and originally sentenced to life; his sentence was later reduced to 360 months (2011) and then to 324 months (2015).
The Presentence Report assessed Herbert two criminal-history points based on a West Virginia juvenile conviction for possession of cocaine, yielding Criminal History Category II.
Herbert filed a pro se motion to amend/correct the PSR and judgment, arguing (1) his West Virginia juvenile record should not have been used because state law seals/expunges it, and (2) his ~2 years in New York state custody should be credited against his federal sentence as related time.
The Probation Office agreed the New York custody was for an offense related to the federal offense and acknowledged Herbert served two years there; it recommended credit for that time.
The court evaluated applicable federal law on use of juvenile records (U.S.S.G. § 4A1.2(d)(2)(A)) and the limits on a district court’s authority to modify an imposed sentence (18 U.S.C. § 3582(c)).

Issue	Plaintiff's Argument (Herbert)	Defendant's Argument (Government/Court)	Held
Whether Herbert’s sealed/expunged West Virginia juvenile record could be used to compute criminal history	West Virginia law extinguishes sealed juvenile offenses, so the juvenile conviction should not count	Federal Guidelines permit juvenile convictions; WV law expressly allows disclosure to federal courts; state-law sealing alone doesn’t create a federal due-process violation	Court held the juvenile record was properly considered; no due-process violation and Guidelines apply
Whether the court can amend the federal sentence to credit ~2 years served in New York state custody as related time	Herbert sought judicial credit against his federal sentence for the related state custody time	Court lacks jurisdiction to modify a final federal sentence absent a BOP motion under § 3582(c)(1)(A), Rule 35 timing, or a Sentencing Commission amendment; BOP has not moved	Court denied relief for lack of jurisdiction; noted Probation and PSR treat the time as related and referred Herbert to BOP/Clemency avenues

United States v. Inglesi, 988 F.2d 500 (4th Cir. 1993) (upholding use of state juvenile records under Guidelines and rejecting state-law sealing as federal due-process violation absent inaccuracy)
United States v. Goodwin, 596 F.3d 233 (4th Cir. 2010) (describing strong protection for finality of criminal sentences)
Harbison v. Bell, 129 S. Ct. 1481 (2009) (discussing presidential clemency as remedy when judicial avenues exhausted)
United States v. Venancio-Dominguez, 660 F. Supp. 2d 717 (E.D. Va. 2009) (district court lacks jurisdiction under § 3582 when BOP has not moved for reduction)
Fernandez v. United States, 941 F.2d 1488 (11th Cir. 1991) (recognizing BOP discretion under predecessor to § 3582)