                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                                    TENTH CIRCUIT                          December 20, 2013

                                                                           Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                      Clerk of Court
            Plaintiff - Appellee,
v.                                                             No. 13-2112
                                                            (D. New Mexico)
SEBASTIAN L. ECCLESTON,                              (D.C. No. 1:95-CR-00014-LH-2)
           Defendant - Appellant.



                                         ORDER


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.



     Sebastian Eccleston recently filed a motion for rehearing, which we have construed

to be a petition for panel rehearing and rehearing en banc. See Fed. R. App. P. 40; Fed. R.

App. P. 35(b). So construed, the petition was reviewed by the panel of judges originally

assigned to this matter. To the extent Eccleston requests a panel rehearing, that request is

denied. Further, the petition was sent to all of the judges of the court who are in regular

active service. Because no member of the panel and no judge in regular active service

requested that the court be polled, Eccleston’s request for an en banc rehearing also is

denied.

     The panel has determined, however, that a factual correction should be made to the

original decision. The correction can be found on page 2. The clerk is directed to file the
attached corrected Order & Judgment nunc pro tunc to the original filing date of

November 25, 2013.



                                    Entered for the Court




                                    ELISABETH A. SHUMAKER, Clerk




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                                                             FILED
                                                 United States Court of Appeals
                     UNITED STATES COURT OF APPEALS      Tenth Circuit

                                    TENTH CIRCUIT                      November 25, 2013

                                                                      Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                 Clerk of Court
            Plaintiff - Appellee,
v.                                                            No. 13-2112
SEBASTIAN L. ECCLESTON,                                    (D. New Mexico)
                                                    (D.C. No. 1:95-CR-00014-LH-2)
          Defendant - Appellant.


                             ORDER AND JUDGMENT*


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.



     Several years ago in New Mexico Sebastian Eccleston murdered 18-year-old Ricky

Comingo. Two days later, he stole a car using a sawed-off shotgun and then robbed two

people at gunpoint. After being arrested by state law-enforcement officers, Eccleston

pleaded guilty in state court to first-degree murder and conspiracy to commit first-degree

murder. He pleaded guilty in federal court to carjacking, using and carrying a sawed-off

shotgun during and in relation to carjacking, interference with commerce by threat or

violence, and carrying a sawed-off shotgun during and in relation to interference with

commerce.



* The case is submitted on the briefs because the parties waived oral argument. See Fed.
R. App. P. 34(f); 10th Cir. R. 34.1(G). 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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
    The federal court sentenced Eccleston first. It gave him 120 months on the first

firearm count and 240 months on the second, to run consecutively, and then 57 months on

the two remaining counts, running concurrently with each other but consecutive to the

firearm counts for a total of 417 months. At the sentencing hearing, the district court

adopted the probation officer’s presentence report (PSR), which recited the fact that

Eccleston’s state plea agreement contained a provision that his state term of

imprisonment would run concurrently with any federal term. However, the district court

did not state at the sentencing hearing whether Eccleston’s federal sentence would run

concurrently with or consecutively to his yet-to-be-imposed state sentence. The district

court’s written judgment was similarly silent on that score.

    After Eccleston’s federal sentencing, the state court sentenced him to life in prison

plus nine years. Because New Mexico was the first to take Eccleston into custody

following his arrest, it had primary jurisdiction over him. See Weekes v. Fleming, 301

F.3d 1175, 1180 (10th Cir. 2002) (explaining the primary-jurisdiction doctrine). As a

result, Eccleston was placed in state custody and began serving his state sentence before

his federal sentence.

    Several years later, Eccleston filed a habeas petition in federal district court under 28

U.S.C. § 2241, arguing that his federal sentence was not being properly executed.

Although Eccleston’s federal and state sentences were running consecutively, he believed

he was entitled to serve those sentences concurrently in a federal facility with his time in

state custody credited against his federal sentence. On appeal, we remanded the case to

the district court with instructions to dismiss Eccleston’s petition with prejudice because

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it failed to raise any viable claim. United States v. Eccleston, 521 F.3d 1249, 1251 (10th

Cir. 2008).

    Eccleston then attempted to achieve the same result—having his state time credited

against his federal sentence—via a different road. To that end he filed a motion under

Federal Rule of Criminal Procedure 36 asking the district court to amend its written

judgment to make his federal sentence concurrent with his state sentence. Rule 36

provides, “[a]fter giving any notice it considers appropriate, the court may at any time

correct a clerical error in a judgment, order, or other part of the record, or correct an error

in the record arising from oversight or omission.” Fed. R. Crim. P. 36. The district court

denied Eccleston’s motion.

    Now on appeal, Eccleston claims the district court erred in doing so. His argument

starts with the following premise: If a district court intended a defendant’s federal

sentence to run concurrently with a later-imposed state sentence but its written judgment

omitted any statement to that effect, then the district court may correct that omission

under Rule 36. Here, although the written judgment is silent on how Eccleston’s federal

and state sentences would run, Eccleston says the district court intended the sentences to

run concurrently. To prove it, he points to the district court’s adoption of the PSR, which

allegedly stated that his sentences would run concurrently. As a result, Eccleston believes

the district court should have granted his Rule 36 motion and corrected its written

judgment to reflect its intent to run his federal and state sentences concurrently.

    We are not persuaded, however, that the district court’s adoption of the PSR proves

so much. The PSR did not say that Eccleston’s federal and state sentences would run

                                             -3-
concurrently; it merely recited the fact that Eccleston’s state plea agreement included a

provision that his state sentence would run concurrently with his federal sentence. See

Eccleston, 521 F.3d at 1251 (“The state plea agreement provided that Mr. Eccleston’s

state term of imprisonment would run concurrently with any federal term.”). To say the

district court adopted that recitation in the PSR doesn’t say very much. Was the district

court merely acknowledging the existence of a provision in Eccleston’s state plea

agreement or using that provision to inform its decision on how to run Eccleston’s federal

and state sentences? The answers to those questions are not readily apparent to us. In

other words, we think the district court’s adoption of the PSR sheds little light on whether

the district court intended to run Eccleston’s sentences concurrently or consecutively.

    Two other facts, however, do shed considerable light on the subject and persuade us

that the district court intended Eccleston’s federal sentence to run consecutively to his

state sentence. First, the record contains a quotation from a letter the district court wrote

to the Bureau of Prisons stating, “[i]t was my intent at sentencing that the federal

sentence be served consecutively to [Eccleston’s] state sentence and this remains my

position.” R. at 199. Second, when the district court sentenced Eccleston, the law in this

circuit was that multiple terms of imprisonment imposed at different times were

consecutive unless the district court ordered otherwise. See United States v. Williams, 46

F.3d 57, 59 (10th Cir. 1995). Presumably aware of Williams, the district court knew that

its silence meant Eccleston’s sentences would run consecutively.

    Because the district court intended Eccleston’s federal sentence to run consecutively

to his state sentence, it understandably rejected Eccleston’s request to amend the written

                                            -4-
judgment to make those sentences concurrent. In short, the district court denied

Eccleston’s motion to amend because there was no error or omission to amend. We don’t

see anything wrong with that. We therefore affirm the district court’s order denying

Eccleston’s Rule 36 motion. We grant Eccleston’s motion to proceed in forma pauperis.



                                        ENTERED FOR THE COURT


                                        Gregory A. Phillips
                                        Circuit Judge




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