The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a Motion for Nunc Pro Tunc Judgment ("petitioner's motion") (Doc. No. 900) filed by petitioner Alphonso Sloan ("petitioner") on February 19, 2008. After reviewing petitioner's motion and the government's brief in opposition, the court will dismiss petitioner's motion for lack of jurisdiction.
On February 18, 2003, a federal grand jury returned a nineteen-count indictment charging several individuals with various drug-trafficking and firearms charges. Petitioner was charged with conspiracy to distribute and possess with the intent to distribute one hundred (100) grams or more of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, from on or about November 20, 2002 and continuing thereafter to on or about February 8, 2003, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(i) (Count Six) and with possession with the intent to distribute less than one hundred (100) grams of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, on or about January 8, 2003 (Count Eleven). (Doc. No. 1).
On October 21, 2003, petitioner entered a plea of guilty to the conspiracy charge (Count Six). (Doc. No. 228). On March 19, 2004, petitioner was sentenced by this court to imprisonment for a term of 63 months to be followed by supervised release for a term of 4 years. (Doc. No. 289). Petitioner did not appeal his sentence.
On March 7, 2005, petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 427). In his motion, petitioner argued ineffective assistance of counsel claiming that at sentencing his counsel should have made an argument, pursuant to U.S.S.G. § 5G1.3, that petitioner's federal sentence should be imposed to run concurrently with any sentence imposed for his then-pending state drug charges. In a Memorandum Opinion and Order issued May 25, 2006 the court denied petitioner's motion. (Doc. No. 702). In doing so, the court concluded that U.S.S.G. § 5G1.3(a), (b) and (c) did not apply because petitioner had yet to be convicted or sentenced for the state charges, and, therefore, was not yet serving a "term of imprisonment" for the state charges, at the time of federal sentencing. As a result, petitioner could not show an "undischarged term of imprisonment" based upon the state charges at the time of federal sentencing which this court could have considered.
On or about February 19, 2008, the clerk of court received and filed petitioner's Motion for Nunc Pro Tunc Judgment. (Doc. No. 900). In his motion, petitioner alleges that following his federal sentencing, on or about March 22 or 23, 2004, the State of Pennsylvania imposed a sentence of 4 to 8 years, which petitioner argues, without providing details, related to the same course of conduct as the federal offense. He further alleges that after being sentenced by the state court he was transferred to the Pennsylvania State Department of Corrections for service of the state sentence. Petitioner claims that after being paroled from the Pennsylvania state sentence on February 21, 2007, he began serving the sentence imposed by this court. In his motion, petitioner argues that he should receive credit on his federal sentence for the time he spent in custody from February 2003 to the time he was paroled on his Pennsylvania State sentence on February 21, 2007.
On February 21, 2008, the court issued a notice that the Motion for Nunc Pro Tunc Judgment had been filed and directed the government to file its response on or before March 4, 2008. On March 4, 2008, the government filed its response in opposition.
With this present motion, petitioner is in effect asking this court to modify his sentence using a nunc pro tunc*fn1 exercise to designate the state prison as the "place of confinement" for purposes of determining whether he is entitled to credit against his federal sentence for time spent in state custody. As detailed below, this court is without jurisdiction to provide the relief petitioner requests.
"A district court's jurisdiction to reconsider sentencing may only stem from a statute or rule of criminal procedure." United States v. Servidio, No. 06-CR-709(WJM), 2008 WL 352866, at *1 (D.N.J. Feb. 7, 2008) (citing United States v. Higgs, 504 F.3d 456, 464 (3d Cir. 2007)). Generally, a sentencing court may not modify a term of imprisonment once it has already been imposed. 18 U.S.C. § 3582(c); see, e.g., United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) ("Generally, a district court may not modify a term of imprisonment once imposed"); Quesada Mosquera v. United States, 243 F.3d 685, 686 (2d Cir. 2001); United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) ("A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization.").
Under 18 U.S.C. § 3582(c): the court may not modify a term of imprisonment once it has been imposed except that--(1) in any case--(A) the court, upon motion of the Director of the Bureau of Prisons, may r educe the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and ...