FEDERAL CRIMINAL LAWYERS

Sentencing Error Correction

Welcome to Spodek Law Group. Our goal is to give you the information you’re facing so you can make smart decisions about your case and your life. If you’re reading this, you probably think there’s something wrong with your sentence. Maybe you’ve done the math yourself. Maybe another inmate showed you something that doesn’t add up. Maybe you’ve been staring at your judgment and the numbers just don’t make sense.

Here’s what nobody tells you: the federal system has multiple places where errors can hide, multiple deadlines that can expire, and multiple remedies that don’t talk to each other. You could be absolutely right that there’s an error – and still serve every single day of a wrong sentence because you didn’t know which door to knock on, or you knocked too late.

This isn’t about whether errors happen. They happen constantly. In fiscal year 2024, the U.S. Sentencing Commission documented 11,040 resentencings – a 313% increase from the prior year. Thousands of people were serving sentences that were already ruled too harsh under current standards. The question isn’t whether the system makes mistakes. The question is whether you can catch them in time.

The 14-Day Trap Most People Fall Into

Heres the thing about federal sentencing errors. Rule 35(a) gives the court exactly 14 days to correct a sentence that resulted from “arithmetical, technical, or other clear error.” That sounds reasonable until you understand when the clock starts.

The 14 days begins from the moment the judge speaks your sentence out loud – not from when you recieve the written judgment. Most defendants dont even have their written judgment in hand by the time that window slams shut. Your walking out of the courtroom in shock, trying to process what just happened, and the clock is already running.

Think about that. You have 14 days from oral pronouncement. Not 14 days from when you actualy understand what happened. Not 14 days from when you get the paperwork. Fourteen days from the moment the words leave the judges mouth.

And heres the kicker – this window is for YOUR lawyer to catch errors, not for you. If your lawyer dosent object to a miscalculation right there in the courtroom, or within those 14 days, that particular remedy is gone. Forever. Its not coming back.

What makes this even worse is that the 14-day window applies specificaly to “clear errors.” If theres any ambiguity about weather an error occured – if theres any room for interpretation – courts will often say the error wasnt clear enough to trigger Rule 35(a). So even if you catch something within 14 days, you might still lose becuase the error wasnt “clear” in the technical legal sense.

The courts have interpreted “clear error” extremly narrowly. A sentancing judge who misapplied a guideline enhancement? Maybe not “clear.” A judge who used the wrong edition of the guidelines manual? Courts have split on weather thats clear enough. A mathematical error in computing criminal history points? Thats clear. See the problem? You need the error to be obvious, undisputable, and discovered within 14 days.

Most people discover sentancing errors months later. Maybe years later. By then, Rule 35(a) is ancient history.

Three Systems That Dont Talk to Each Other

OK so you’ve discovered an error. Now what? This is were most people make their second critical mistake.

The federal system has three completly separate error-correction processes:

1. The sentencing court (where the judge is)
2. The Bureau of Prisons computation center (where the math actually happens)
3. The appellate courts (where you appeal)

These three systems dont communicate with each other. An error in one dosent automatically transfer to another. You could win a BOP administrative remedy and the court still has your old sentence on record. You could win on appeal and the BOP might still be computing your release date wrong.

Filing in the wrong system dosent just waste time – it can actually hurt you. Courts have dismissed cases becuase defendants filed a 2255 motion when they should of filed an administrative remedy with the BOP first. The doctrine is called “exhaustion” and its basicly a procedural trap that restarts your clock.

Let that sink in. You identify an error. You file in what you think is the right place. You get dismissed for being in the wrong place. Now your behind on deadlines in BOTH places.

The Texas Office Controlling Your Release Date

Heres were it gets really strange. The judge sentences you, but a clerk in Grand Prairie, Texas decides when you actualy get out.

Theres an office called the Designation and Sentence Computation Center – the DSCC – located at the Grand Prairie Office Complex in Texas. This is were the Bureau of Prisons calculates every federal inmate’s actual release date. Every sentence computation, every prior custody credit determination, every good conduct time calculation – it all happens there.

Most defendants have never heard of the DSCC. There lawyers probly havent mentioned it. But this invisable office has more practical control over when you walk out of prison then the judge who sentenced you.

The DSCC handles sentence computations for aproximately 150,000 federal inmates. There doing the math on everyones release date, and there working off documents that get sent to them from courts all over the country. Sometimes those documents are incomplete. Sometimes there contradictory. Sometimes the information changes after sentancing and nobody tells the DSCC.

Heres what happens in practice. You get sentenced. The court sends a judgement to the DSCC. A sentence computation specialist in Texas looks at that judgement, looks at your PSR, looks at any prior custody records, and calculates your release date. That specialist has never met you. Dosent know your case. Is working off paperwork that may or may not be accurate.

Why does this matter? Because if there’s an error in how the DSCC computed your sentence, your remedy isnt in the courts – at least not initially. You need to go threw the BOP administrative remedy process first. Thats a whole different set of forms, a whole different set of deadlines, and a whole different set of decision-makers.

The administrative remedy process has three levels. First you file a BP-9 at your institution. If thats denied, you file a BP-10 with the Regional Director. If thats denied, you file a BP-11 with the General Counsel. Only after exhausting all three levels can you go to federal court with a 2241 habeas petition. This process takes months. Sometimes longer.

The BOP relies heavily on the Presentence Report when making sentence computations. If that PSR has errors – and alot of them do – those errors flow right into the DSCC’s calculations. And now your serving time based on wrong information, in a system that dosent know its wrong.

Criminal History Errors Nobody Catches in Time

Criminal history calculation is probly the single most common source of sentancing errors. And its almost never caught in time.

Heres how the guidelines work. You get 3 points for each prior sentence exceeding one year and one month. You get 2 points for sentences between 60 days and 13 months. You get 1 point for sentences under 60 days. Additional points get added if you commited the offense while under criminal justice supervision.

Sounds straighforward. Its not.

There are exceptions everywhere. Uncounseled convictions that resulted in jail time dont count. Stale convictions that are too old dont count. Some prior sentences are suposed to be grouped together as a single sentence. Revocation sentences have specific rules. The calculations are incredably complex.

And whos checking this? In theroy, your lawyer. In reality, most defendants only discover criminal history errors when they start comparing notes with other inmates. Someone says “wait, that shouldnt of counted” and suddenly your looking at your PSR differently.

By then, Rule 35(a)’s 14 days is long gone. Your left with either a 2255 motion (if you can prove ineffective assistance of counsel) or an appeal (if the issue was preserved). Neither one is gauranteed.

In FY2024, over 8,477 cases involved sentence modifications due to the Sentencing Commission’s 2023 amendment to criminal history provisions. Most of those were status points errors that had been baked into sentences for years. The system knew the calculations were harsh. It just took retroactive action to fix them.

Heres an example of how criminal history errors happen. Defendant gets sentenced in 2020. The PSR lists a prior conviction from 2015 that added 3 criminal history points. Nobody notices that the prior conviction was actualy an uncounseled misdemeanor where the defendant never had a lawyer and only served probation. Under the guidelines, that conviction shouldnt of counted at all. But it did. And those 3 extra points pushed the defendant into a higher criminal history category, which increased the guideline range by 15 months.

Fifteen extra months. Becuase of a miscounted prior conviction. Becuase nobody checked weather the defendant had counsel in that prior case. Becuase the PSR preparer just listed convictions without verifying the details.

This happens all the time. Probation officers preparing PSRs pull rap sheets and list convictions. They dont always verify weather there was counsel. They dont always check if sentences ran concurrent or consecutive. They dont always confirm the exact sentence length. And lawyers dont always catch these errors becuase reviewing criminal history requires going back and pulling old court records – time-consuming work that dosent always get done.

When You Cant Blame Your Lawyer Even If Its Their Fault

So your lawyer missed an obvious criminal history error. That should be ineffective assistance of counsel, right?

Theoreticaly, yes. Practicaly, almost never.

To win an ineffective assistance claim under Strickland v. Washington, you need to prove two things: (1) your lawyer’s performance was deficient, and (2) that deficiency prejudiced your case – meaning theres a reasonable probability the outcome would of been different.

Both prongs are incredably hard to prove for sentancing errors.

For deficiency, courts give lawyers enormous deference. Maybe your lawyer made a “strategic decision” not to challenge the criminal history. Maybe the error wasnt obvious at the time. Maybe there calculation was defensable even if wrong.

For prejudice, you need to show the sentence actualy would of been different. But post-Booker, the guidelines arent manditory. So even if your guideline range was wrong, a court might say the judge would of imposed the same sentence anyway under the 3553(a) factors.

Todd Spodek has watched clients discover obvious lawyer errors months after sentancing – errors that clearly added years to sentences – and still face nearly imposible odds proving IAC. The standard is designed to protect finality, not to correct mistakes.

Heres the uncomfortable truth: most sentancing errors attributable to lawyer failure never get corrected. The Strickland test is to hard to meet. And the system prefers closed cases to accurate sentences.

The Government Decides If You Get Credit for Cooperating

Rule 35(b) is the other half of Rule 35. While 35(a) is about correcting errors, 35(b) is about reducing sentences for substantial assistance.

Sound good? Theres a catch. Only the goverment can file a Rule 35(b) motion. You have absolutly no control over weather it happens.

According to Sentencing Commission data, Rule 35(b) reductions average 37.1% off original sentences. Thats substantial. But compare that to pre-sentancing 5K1.1 departures, which average 52.6% off guideline ranges. Theres a 15 percentage point gap between cooperating before sentancing and hoping for Rule 35(b) after.

Whats worse, defendants who cooperate fully sometimes never see a Rule 35(b) motion filed. Personel changes at the prosecutors office. Your case falls threw the cracks. The information you provided didnt lead were they hoped. Whatever the reason, the goverment simply dosent file.

Courts almost never compell the goverment to file a Rule 35(b) motion. The standard for forcing the goverments hand requires showing unconstitutional motives – basicly impossible to prove.

So you cooperated. You put yourself at risk. You provided truthful, complete information. And you still might get nothing in return. Thats the Rule 35(b) reality.

What 11,040 Resentencings in One Year Tell You

Lets talk about those FY2024 numbers again, becuase they matter.

The Sentencing Commission documented 11,040 resentencings and sentence modifications – a 313% increase from the prior year. That number should shock you.

Over three-fourths of those cases involved reductions under the Commission’s 2023 amendment to criminal history provisions. The Commission made this amendment retroactive, meaning people who were already serving time could petition for lower sentences.

What does this tell you? First, that thousands of people were serving sentences the system now acknowledges were to harsh. Second, that errors dont automaticaly get corrected – it took specific Commission action and individual petitions to fix them. Third, that retroactive relief is rare, and when it happens, you need to act on it.

The Commission estimates around 18,700 incarcerated individuals were eligible for retroactivity under the 2023 amendment. Not all of them will petition. Not all petitions will be granted. But the scale shows how many sentences contained what we now recognize as problems.

Think about those numbers for a minute. The Sentencing Commission basicly admitted that there guideline calculations for criminal history status points were to harsh. They changed the rules. And they made the change retroactive. That almost never happens. When it does, it means the original calculations were creating unjust outcomes at scale.

But heres the thing – even when retroactive relief is available, you have to know about it and you have to act on it. The BOP dosent automaticaly recalculate everyones sentence when the guidelines change. You have to petition. You have to file the motion. You have to meet the procedural requirements. If you dont, you serve the old sentence even though you would of qualified for reduction.

This is why staying informed matters. This is why having counsel who monitors guideline amendments matters. This is why you cant just assume the system will correct itself.

Todd Spodek reviews sentence computations before clients leave the courtroom – because 14 days goes fast, and discovery after the fact is almost always to late. At Spodek Law Group, we check the math while theres still time to challenge it.

Which Remedy Matches Your Error

Alright, lets make this practical. You think theres an error. What do you do?

Start by categorizing the error:

Type 1: Clear arithmetical or technical error in the sentence itself

• Remedy: Rule 35(a) – but only if within 14 days of oral sentencing
• If past 14 days: Direct appeal (if issue preserved) or 2255 (if constitutional dimension)

Type 2: BOP computation error (prior custody credit, good conduct time, release date)

• Remedy: BOP Administrative Remedy process (BP-9, BP-10, BP-11)
• Must exhaust before filing 28 U.S.C. 2241 habeas petition
• File with the institution or directly with DSCC depending on what made the decision

Type 3: Criminal history miscalculation in PSR

• Remedy: Depents on when discovered and whether preserved
• If preserved and timely: Direct appeal
• If not preserved: 2255 for IAC (difficult) or wait for retroactive amendment (unpredictable)

Type 4: Guidelines misapplication (enhancements, departures)

• Remedy: Direct appeal under procedural reasonableness standard
• Must have objected at sentencing to preserve issue

Do not file in the wrong forum. A 2255 motion when you should of filed an administrative remedy will get dismissed for failure to exhaust. An administrative remedy when the error is in the judgment itself will be rejected as outside BOP’s authority. Know which system owns your error before you file anything.

Sound familiar? Most people learn these distinctions the hard way, after filing in the wrong place. Get advice from someone who knows the difference before you act.

What You Need to Do Right Now

If your reading this, your already behind. Every day you wait is a day closer to a deadline. Maybe the deadline has already passed. But you wont know until you look.

First, get a copy of your judgment and PSR. Compare every number. Check every criminal history point. Look at every enhancement.

Second, get your BOP sentence computation data. Compare it to what the judge said. Look for discrepancies in prior custody credit, projected release date, good conduct time.

Third, figure out which error type you have and which remedy applies. Not which one sounds right – which one actually has jurisdiction over your issue.

Fourth, talk to a lawyer who handles federal sentencing issues. Not a general criminal lawyer. Someone who understands guidelines, BOP computations, and the interaction between court remedies and administrative remedies.

Call us at 212-300-5196. Spodek Law Group handles sentencing error cases nationwide. We can review your situation and tell you whether theres a viable path forward – and what the deadlines are.

The system doesn’t care whether you understand it. Windows close whether you know about them or not. The only thing you control is how quickly you act.