UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES,

Plaintiff,

v. Criminal Action No. 19-cr-0052 (TSC)

JAMES JOHNSON,

Defendant.

MEMORANDUM OPINION

Defendant James Johnson was arrested and incarcerated on March 1, 2019 after being

indicted on various drug and gun charges. See Indictment, ECF No. 1. Johnson later pleaded

guilty to Count Two of the indictment: Simples Possession of a Controlled Substance. See

November 5, 2021 Min. Entry; Plea Agreement, ECF No. 119. He was then sentenced to twelve

months of incarceration—with credit for time served—and one year of supervised release on

January 19, 2022. See Judgment at 2, ECF No. 136. In the time between Johnson’s arrest and

sentencing, he served approximately twelve to fourteen months in prison. See Gov’t Sentencing

Mem. at 6, ECF No. 130; Def. Memo. in Aid of Sentencing ¶ 2, ECF No. 132. Thus, Johnson

was released from prison to serve his one-year term of supervised release. See Judgment at 2, 3.

Shortly thereafter, Johnson violated his supervised release conditions. The court issued a

warrant for his arrest, which was executed on March 11, 2022. See March 11, 2022 Minute

Entry. After being held for approximately three months, Johnson was sentenced on June 10 to

“eleven (11) months with credit for time served” on the violations of his supervised release. See

J. on Revocation at 3, ECF No. 145.

Page 1 of 5 In doing so, the court believed that Johnson would be expeditiously, if not immediately

released, based on the time that he had served awaiting sentencing on both his original criminal

conviction, and the violations of his supervised release. That belief was shared by both the

Defense and the Government. See Status Report ¶ 1, ECF No. 148 (“The Government notes that

at the hearing on violation on June 10, 2022, the parties were under the impression that a

sentence of 11 months with credit for time served would result in the defendant’s immediate

release in this case.”).

Johnson, however, remained incarcerated. See Def. Mot. for Release Order ¶¶ 3, 5, ECF

No. 147. On June 20—ten days after his sentencing hearing—he thus moved for an immediate

order of release. Id. The court requested that the Government and the Probation Office respond

to Johnson’s motion by June 27. See June 23, 2022 Min. Entry. The Government did not object

to Johnson’s motion, noting that it also believed that he should have been released after the June

10 sentencing hearing. Status Report ¶ 1. The Probation Office’s memorandum indicated that

Johnson’s time served awaiting sentencing for his original conviction was not applicable to his

sentence for the violations of his supervised release. Probation Office Mem. at 2, ECF No. 149;

see also

(b)(1). Thus, because Johnson had been detained for three months and

five days—as of June 27, 2022—he still had an estimated eight months remaining on his

supervised release violation sentence, a term of incarceration that was not intended by the court

or the parties at the June 10 sentencing.

The court clearly erred in its oral pronouncement of Johnson’s sentence. Fortunately, a

court may correct a sentence that resulted from “arithmetical, technical, or other clear error.”

Fed. R. Crim. P. 35(a). This provision allows courts to correct sentences “in which an obvious

error or mistake has occurred.” Fed. R. Crim. P. 35, advisory committee’s note to 1991

Page 2 of 5 amendment. The court should make that correction within fourteen days of sentencing, defined

as the “oral announcement of the sentence.” Fed. R. Crim. P. 35(a), (c).

Rule 35(a)’s fourteen-day limitation period is a nonjurisdictional procedural limitation

that may be fairly subject to equitable tolling. In general, limitations “found in a procedural rule,

not a statute, [are] properly classified as a nonjurisdictional claim-processing rule.” See

Nutraceutical Corp. v. Lambert,

(2019). Indeed, procedural requirements

like Rule 35(a) should only be treated as jurisdictional if there is clear statutory intent that it

should be treated as such. See Boechler, P.C. v. Comm’r of Internal Revenue,

,

1497 (2022). There is no such statutory intent here: the statute that governs the district court’s

authority to modify a sentence does not even mention the word “jurisdiction,” let alone cabin the

district court’s exercise thereof.

(c)(1)(A), (B). Thus, the D.C. Circuit has held

that Rule 35 is not jurisdictional and “no more than a claim-processing rule,” while also calling

into question whether § 3582 bears any jurisdictional import whatsoever. United States v. Smith,

(D.C. Cir. 2006) (citing Eberhart v. United States,

(2005)).

Of course, not all nonjurisdictional rules may be subject to equitable tolling: certain rules

are mandatory and may not be tolled. See, e.g., Nutraceutical Corp.,

(Federal

Rule of Civil Procedure 23(f) is a nonjurisdictional rule not subject to equitable tolling). But

mandatory rules are those that “‘seek to promote the orderly progress of litigation by requiring

that the parties take certain procedural steps at certain specified times.’” Manrique v. United

States,

(2017) (quoting Henderson v. Shinseki,

(2011)).

By contrast, Rule 35(a)’s fourteen-day window applies to the court, not the parties: it is thus not

mandatory, and may be subject to equitable tolling.

Page 3 of 5 Equitable tolling is appropriate here. Johnson pursued his rights diligently: his motion

was filed ten days after the sentencing hearing, within Rule 35(a)’s fourteen-day window. Cf.

Menominee Indian Tribe of Wisconsin v. United States,

(2016) (“[A] litigant is

entitled to equitable tolling . . . [when] he has been pursuing his rights diligently. . . .”).

Moreover, the Government does not object to Johnson’s motion, and agrees with his (and the

court’s) characterization of the sentence: there is no risk of prejudice if the limitations period is

tolled. See Baldwin Cty. Welcome Ctr. v. Brown,

(1984) (“[A]bsence of

prejudice is a factor to be considered in determining whether the doctrine of equitable tolling

should apply. . . .”). Not applying equitable tolling would leave Johnson incarcerated when the

court expressly indicated that it did not intend for him to be. This, therefore, is the sort of “rare

situation where “equitable tolling is demanded by sound legal principles as well as the interests

of justice.” Alvarez-Machain v. United States,

(9th Cir. 1996).

The court therefore finds that Rule 35(a)’s limitation period was equitably tolled from the

filing of Johnson’s motion on June 20. That finding is in accordance with the view that §

3582(c)(1)(B) “does not impose any substantive or procedural limits on a district court’s

discretion.” Concepion v. United States, No. 20-1650,

at *10 n. 5 (2022).

Accordingly, the court will amend the Judgment to reflect a sentence of three months

incarceration, with credit for time served. That sentence reflects the stated intent of the court

at Johnson’s June 10 hearing to impose a sentence that would result in his expeditious release: a

belief shared by the Johnson and the Government. Given the Probation Office’s representation

of the time that Johnson has served awaiting sentencing on his supervised release violation, that

sentence will achieve the court’s intended and professed goals in sentencing Johnson for his

conduct.

Page 4 of 5 An Order will be issued contemporaneously with this Memorandum Opinion. The

Judgment on Revocation entered on June 15, 2022, ECF No. 146 will be amended to reflect that

order. Finally, Johnson’s Motion for Release from Custody will be DENIED without prejudice

as moot, as the corrected sentence should result in the relief requested in that motion.

Date: July 14, 2022

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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