In 2017 U.S. District Judge Marco Hernandez forgot to sentence a defendant to a term of supervised release following his 6 month jail term imposed for violating conditions of supervised release, but that made no difference in the long run. Under Federal Rule of Criminal Procedure 35 Hernandez had 14 days to correct the error and he did just that. I know this because I was the defendant. I didn’t even realize that he forgot to give me supervision until my lawyer told me that I had to go back to court because Hernandez forgot to give me supervision. I fired back “too late, he screwed up, good” but under rule 35 (a) “within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Since it was obvious at the hearing that Hernandez intended to add a term of supervision but just forgot to say so, it fell within the scope of Rule 35 and he gave me a 24 month term of supervision.
This was a painful experience for me because my arm was broken at the time. It was not just any break either. My humerus was snapped into two pieces and I was on in extreme pain constantly even though I was on Norco. Just moving even a little bit hurt and whenever I went to court I was usually gone all day and missed the afternoon med line at the jail. If Judge Hernandez would have done his job right the first time he would have literally saved me a lot of pain.
At least he forgot to give me a 30 month term of supervision or at least I think he did. The government had asked for 12 months followed by a 24 month term of supervision. The sentencing guidelines (USSG) recommended a term of 6-12 months for offenders with my history if a Grade C violation was committed. A grade C violation includes technical violations that by themselves would not constitute a crime but just violate a release condition. Since it was my first violation and we obviously made it clear that there were extenuating circumstance, I received just a 6 month sentence plus the 24 months of supervision. But I am not sure if Hernandez forgot that by giving me 6 months he could then give me 30 months of supervision, if I got 24 months because after getting the 6 month revoke AUSA Greg Nyhus never asked for more than 24 months of supervision, or if Hernandez realized he could do it but cut me a break. Based on my experiences with Hernandez I think he probably forgot.
I never said anything about this before because technically the court or the government could have moved to add 6 months to my supervision at any time before it expired because technically my term was 6 months below the statutory maximum. I did not want to rat on myself so I kept my mouth shut and now I am no longer on supervision for that case.
Published at Thu, 12 Sep 2019 23:22:39 +0000