United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL CHIEF JUDGE.
31, 2012, Defendant Julian Kenneth Hardin pled guilty to one
count of manufacture of marijuana in violation of 21 U.S.C.
§ 841(a)(1) and one count of possession of firearms by a
prohibited person in violation of 18 U.S.C. § 922(g)(3).
On December 6, 2012, Hardin was sentenced to 108 months'
imprisonment, three years of supervised release, a fine of
$15, 000, and a $200 special assessment. Hardin is currently
incarcerated at Federal Correctional Institution Petersburg
Low in Hopewell, Virginia.
sentencing, Hardin's offense level was enhanced by two
levels under U.S.S.G. § 2Dl.l(b)(1) because of the
presence of a firearm. Presently, Hardin complains that he is
ineligible for a sentence reduction upon completion of the
Residential Drug Abuse Program ("RDAP") under 18
U.S.C. § 3621(e) and its attendant regulations because
of this sentencing enhancement.Defendant has filed a motion
pursuant to Federal Rule of Criminal Procedure 3 6 to
"delete" the two point enhancement and amend the
Judgment of Conviction in the case, referring to the
enhancement as an "oversight." (See Doc.
100, at 2-3.)
allows a district court to correct a clerical error in a
judgment or order. It may not be used "to make a
substantive alteration to a criminal sentence" as
requested by Hardin. See United States v. Pease, 331
F.3d 809, 816 (11thCir. 2003); see also United
States v. Portillo, 363 F.3d 1161, 1164 (11th
Cir. 2004) (Rule 36 gives a court "no jurisdiction to
correct a defendant's sentence where the corrections are
aimed at remedying errors of law rather than mere
transcription.") Rather, to the extent that Hardin
challenges his sentence, i.e., whether the two-level
enhancement was applicable, such claim is a challenge to the
legality of his sentence. As such, the claim is only
cognizable as a motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255. Because Hardin has
already filed a § 2255 motion, he must move the Eleventh
Circuit Court of Appeals for an order authorizing this Court
to consider a second or successive § 2255 motion.
See 28 U.S.C. §§ 2255, 2244(b)(3).
extent that Hardin contests the execution of his sentence of
confinement by taking issue with the Bureau of Prisons'
application of the early release provision, his complaint is
cognizable under 28 U.S.C. § 2241. See, e.g.,
Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348,
1352 (11thCir. 2008) ("[C]hallenges to the
execution of a sentence, rather than the validity of the
sentence itself, are properly brought under §
2241."). A § 2241 petition must be filed in the
district of confinement following exhaustion of
administrative remedies. See Fernandez v. United
States, 941 F.2d 1488, 1495 (11th Cir. 1991)
. Hardin is currently incarcerated in Petersburg, Virginia,
which is in the Eastern District of Virginia. This Court is
therefore without authority to review his claim as it relates
to the Bureau of Prison's implementation and application
of its internal policies.
the foregoing, Hardin's motion to change his Judgment of
Conviction to modify the application of the guidelines (doc.
100) is DENIED•
 Specifically, Section 2Dl.l(b)(1)
provides for a two level enhancement * [i]f a dangerous
weapon (including a firearm) was possessed." The
Presentence Investigation Report indicates that Hardin
possessed 64 firearms (5 in the master bedroom, 4 in the
living room, 11 in the den, 2 in the kitchen, 12 in a
"work area" inside the residence, and 3 0 in an
outside workshop) - and 7, 418 rounds of ammunition (various
calibers located throughout the residence and
Hardin did not object to the enhancement at
sentencing. Moreover, Hardin's contention that the Court
lacked evidence that he was involved in the "Armed
Trafficking business" is immaterial.
 Section 3621(e) allows the Director of
the Bureau of Prisons to grant a sentence reduction of up to
one year upon the successful completion of the RDAP program,
but the reduction is available only to an inmate convicted of
a "nonviolent offense." See 18 U.S.C. §
3621(e) (2) (B) . Section 3621 does not define
"nonviolent offense" or establish any other
criteria for determining eligibility for this reduction;
rather, the Bureau of Prisons has promulgated regulations and
policies to implement the statute. One such regulation
excludes inmates who have a current felony conviction for
"[a]n offense that involved the carrying, possession, or
use of a firearm . . . ." 28 C.F.R. § 550.55(b)(5).
As stated, Hardin has a current felony conviction for