                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                  November 8, 2010
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 10-5086
 v.                                           (D.C. No. 4:95-CR-00152-TCK-1)
                                                         (N.D. Okla.)
 PETER ANTHONY GUTIERREZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and LUCERO, Circuit Judges. **


      Defendant-Appellant Peter Anthony Gutierrez, a federal inmate appearing

pro se, appeals from the district court’s denial of his motion to correct an error in

his judgment and sentence. Fed. R. Crim. P. 36. He contends that his federal

sentence should run concurrently with his later-imposed state sentence. Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   Background

      In 1996, Mr. Gutierrez pleaded guilty to possession of firearms after a

felony conviction (count one) and possession of stolen firearms (count two). 1 R.

19. In September 1996, the district court sentenced Gutierrez to imprisonment for

consecutive terms of 120 months on count one and 115 months for count two,

totaling 235 months. 1 R. 19. The following month, a state judge sentenced Mr.

Gutierrez to five years imprisonment for knowingly concealing stolen property

and stated that his state sentence should run concurrently to his previously

imposed federal sentence. 1 Supp. R. 18. Apparently Mr. Gutierrez began

serving his state sentence, was paroled on the state of Oklahoma conviction in

1998, then began serving his federal sentence. 1 Supp. R. 24, 32. Mr. Gutierrez

appealed his federal sentence (but not on the grounds he now raises) and we

affirmed. United States v. Gutierrez, 1997 WL 375342 (10th Cir. July 8, 1997)

(unpublished).

      Mr. Gutierrez has previously attempted to challenge the consecutive

operation of his federal and state sentences, first in a 2005 motion to amend the

judgment and then in a 2010 letter to the court, both of which were dismissed for

lack of jurisdiction. 1 Supp. R. 31-34; 1 Supp. R. 45-46. On June 7, 2010, Mr.

Gutierrez filed the instant Rule 36 motion contending the district court intended

that his federal and states sentences be served concurrently and that the omission

of this intent from the record was a clerical error to be corrected. 1 R. 40. The

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district court denied this motion on July 1, 2010. 1 R. 40. This appeal followed.



                                    Discussion

      Under 18 U.S.C. § 3584(a), terms of imprisonment imposed at different

times run consecutively absent the court ordering concurrent terms. United States

v. Williams, 46 F.3d 57, 59 (10th Cir. 1995) (citation omitted). “[T]he

determination of whether a defendant’s ‘federal sentence would run consecutively

to his state sentence is a federal matter which cannot be overridden by a state

court provision for concurrent sentencing on a subsequently-obtained state

conviction.’” United States v. Eccleston, 521 F.3d 1249, 1254 (10th Cir. 2008)

(quoting Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991)).

      Mr. Gutierrez asserts that a statement made by the federal sentencing judge

demonstrates the intention of the federal court that his federal and state sentences

run concurrently. Aplt Br. 4. But the statement in question, as the district court

explained, 1 R. 40, was not made in regard to the duration of the sentence

imposed but rather followed imposition of the sentence and responded to defense

counsel’s concern that Mr. Gutierrez receive credit for time served:

             Mr. Bryant: Your Honor, I’m not sure if the Court record
      reflects this or maybe Mr. Burton can help us out on this. Mr.
      Gutierrez was originally–and I apologize for bringing this up at the
      last minute, but Mr. Gutierrez was originally charged in state court
      and then he was eventually indicted in federal court. At some point,
      his custody was removed from state custody over to federal custody
      and I just want to make sure that he gets credit for all of the time he

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      has been in federal custody.

            Mr. Kirkpatrick: Your Honor, that’s a determination to be
      made by the Bureau of Prisons. We’re [confident] he will get credit
      for every day he served.

             The Court: Well, it is a determination to be made by the
      Bureau of Prisons, but I would certainly, for whatever good it may
      do, whatever–to what extent they would listen to me, it’s obvious
      that all of this time should be credited if these were the same charges
      and he’s been in custody over these same charges, both in state and
      federal and it should all count.

      2 Supp. R. 110-11.

      We have yet to determine the standard of review for Rule 36 motions. See

United States v. Simon, 36 Fed. App’x 415, 416 (10th Cir. 2002) (unpublished)

(citing United States v. Hayden, 10 Fed. Appx. 647, 649 (10th Cir. 2001)

(unpublished); United States v. Sides, 1994 WL 38640, *2 (10th Cir. Feb. 10,

1994) (unpublished)). Regardless, Rule 36 does not empower a court to

substantively modify a sentence. United States v. Blackwell, 81 F.3d 945, 948

n.3 (10th Cir. 1996). Accordingly, the district court did not err in denying the

motion.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.




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