                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                       UNITED STATES COURT OF APPEALS December 15, 2014
                                                                       Elisabeth A. Shumaker
                                       TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                     Nos. 14-6149 & 14-6150
                                                    (D.C. Nos. 5:07-CR-00023-R-1 &
 JEREMY VAUGHN PINSON,                                    5:06-CR-00114-R-1)
                                                              (W.D. Okla.)
               Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of these

consolidated appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The appeals are

therefore ordered submitted without oral argument.

       Appellant Jeremy Pinson is currently serving a federal term of imprisonment

imposed by the U.S. District Court for the Western District of Oklahoma following his

convictions in two criminal cases. In these consolidated appeals, Appellant challenges

the district court’s dismissal of the separate, identical “motion to order hospitalization” he


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
filed in each of his Oklahoma criminal cases.

       As we explained in our opinion affirming the convictions and sentences entered in

the underlying criminal cases, Appellant is a mentally ill individual who was sentenced to

the statutory maximum for each of his counts of conviction based mainly on the district

court’s concern about the danger Appellant poses to the public. See United States v.

Pinson, 542 F.3d 822 (10th Cir. 2008). Following his convictions in these Oklahoma

cases, Appellant pled guilty in the Southern District of Texas to one count of unlawfully

making a threat against a federal law enforcement officer, for which he was sentenced to

a consecutive term of twenty-four months’ imprisonment.

       In the identical motions for hospitalization which he filed in each of his Oklahoma

cases, Appellant “s[ought] an Order directing the Bureau of Prisons to hospitalize Pinson

who is seriously mentally ill and being housed in solitary confinement at the ADX

supermax.” (R. at 12.) “Alternatively,” he sought “a sentence reduction on the basis of

substantial assistance to the [government].” (R. at 12.) Appellant also asserted the

Oklahoma sentencing court received extensive evidence of Appellant’s mental health

needs and intended to recommend incarceration in FMC Butner—the federal medical

center located in Butner, North Carolina—so Appellant could receive the psychiatric

treatment he needed. However, while the sentencing transcript allegedly reflects this

intended recommendation,1 “the written judgment sent to BOP mistakenly wrote ‘FCI


       1
         The record on appeal in this case does not contain a copy of the sentencing
transcript, nor is a copy available electronically on the district court’s docket.

                                            -2-
Butner,’” thus referring to the federal correctional institute rather than the federal medical

center in Butner, which “caus[ed] BOP to not involve psychiatric staff in its designation.”

(R. at 13.) Appellant alleged that this clerical error has resulted in his incarceration in a

facility where his psychiatric needs have not been met. Appellant concluded his motions

for hospitalization with a request for the court to appoint counsel, order a mental status

evaluation, schedule an evidentiary hearing, and grant him hospitalization and a sentence

reduction.

       The district court concluded it lacked authority to grant Appellant’s requests for

hospitalization or a sentence reduction. Sentencing courts may recommend placement in

a particular facility or program, but the BOP has plenary control, subject to statutory

constraints, over the place of imprisonment and the treatment programs in which a

prisoner may participate. See Tapia v. United States, 131 S. Ct. 2382, 2390-91 (2011).

Thus, the court concluded it lacked authority to order the BOP to transfer Appellant to a

hospital or other treatment center. Similarly, the court concluded it lacked authority to

grant Appellant’s request for a reduction of his sentence, since Rule 35(b) of the Federal

Rules of Criminal Procedure only permits such a reduction upon a motion by the

government.

       On appeal, Appellant recharacterizes his request for a sentence reduction as a

claim that the government breached a plea agreement and cooperation agreement entered

in his criminal case in the Southern District of Texas. He argues this breach entitles him

to a sentence reduction in accordance with the terms of those agreements. As for his

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hospitalization request, Appellant contends the district court erred in concluding it lacked

the authority to grant this request. Finally, he argues the district court should have

corrected the clerical error on the written judgment in order to put the BOP on notice that

the court had recommended mental health care treatment during Appellant’s

incarceration.

       Although we construe Appellant’s pro se pleadings liberally, see Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991), we conclude that his first argument was not raised

in the district court proceedings and is therefore forfeited on appeal. Moreover, even if

we were to consider the merits of this argument, we are not persuaded Appellant can

demonstrate breach of the Texas plea and cooperation agreements, since these agreements

gave the government “the sole and unappealable judgment and discretion” to determine

whether a motion for a sentence reduction should be filed. (Second Supplement to R. on

Appeal at 2 (filed under seal).) We are also unpersuaded by Appellant’s argument that

the district court had the authority to order the BOP to transfer him to a hospital for

mental health treatment. The cases Appellant cites for support are all distinguishable and

do not suggest the court was authorized to provide the requested relief in this case.

       On the other hand, Appellant’s argument that the district court should have

corrected the alleged clerical error in the written sentencing judgment presents a closer

question. The government argues we should not consider this argument because

Appellant did not request this specific relief from the district court. However, while

Appellant’s motions did not specifically request correction of the written judgment, one

                                             -4-
of the three pages in each short motion was devoted to the alleged clerical error and the

harms arising therefrom. Construing Appellant’s pro se pleadings liberally, as we must,

we conclude that Appellant raised this argument sufficiently to warrant consideration.

The government also suggests this argument need not be considered because the

requested relief would have no effect on Appellant’s situation. However, while the BOP

has discretion in determining where a prisoner should be placed, the BOP is instructed to

consider, among other things, “any statement by the court that imposed the sentence . . .

recommending a type of penal or correctional facility as appropriate.” 18 U.S.C. §

3621(b)(4)(B). Accordingly, when a clerical error results in a written judgment that “fails

to accurately reflect the unequivocal intent of the judge” in a judicial recommendation to

the BOP, it is appropriate for the court to correct the written judgment to reflect the

intended recommendation. United States v. Guerrette, 2005 WL 3448005, at *2 (D. Me.

Dec. 15, 2005). In this case, as we noted in the prior appeal, the sentencing court heard

extensive evidence of Appellant’s mental health problems and treatment needs. See

Pinson, 542 F.3d at 828-29. If, as Appellant alleges, the sentencing transcript indicates

the court’s intent to recommend incarceration in a medical center where Appellant’s

serious psychiatric needs could be met, then the written judgment should be corrected to

reflect the court’s intent and provide the BOP with the benefit of the court’s reasoned

judgment on this question. We accordingly remand for the district court to determine

whether the written judgment contains a clerical error that should be corrected by the

court.

                                             -5-
      For the foregoing reasons, we REMAND the case for further consideration of

Appellant’s request for correction of the written judgment. The district court’s judgment

is otherwise AFFIRMED. We GRANT the government’s motions to supplement the

record, and we further GRANT the government’s motion for the second supplement to

the record to remain under seal. Appellant’s motion to proceed in forma pauperis on

appeal is also GRANTED.

                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




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