U.S. v. Penson

• Decision Date: 27 May 2008
• Docket Number: No. 06-3419.,06-3419.
• Citation: 526 F.3d 331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George W. PENSON, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.3d 331

UNITED STATES of America, Plaintiff-Appellee, v. George W. PENSON, III, Defendant-Appellant.

No. 06-3419.

United States Court of Appeals, Sixth Circuit.

Submitted: March 3, 2008.

Decided and Filed: May 27, 2008.

ON BRIEF: Vanessa Faye Malone, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Gary D. Arbeznik, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MOORE and COLE, Circuit Judges; WISEMAN, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

The instant case presents this court with a particularly troubling example of a procedurally unreasonable sentence that also exceeds the statutory-maximum sentence. George Washington Penson, III ("Penson") appeals his sentence and the judgment entered by the United States District Court for the Northern District of Ohio. For the reasons explained below, we VACATE the judgment of the district court and REMAND for resentencing.

I. FACTS AND PROCEDURE

On May 6, 2003, an indictment charged Penson with one count of unarmed bank robbery in violation of 18 U.S.C. § 2113(a) and two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d). The facts surrounding Penson's crimes are set forth in our prior panel opinion, United States v. Penson, 141 Fed. Appx. 406, 407-09 (6th Cir.2005) (unpublished opinion). After a two-day trial, the jury returned guilty verdicts with respect to all three counts of bank robbery.

The Presentence Investigation Report ("PSR") recommended a total offense level of thirty-six. The base offense level was twenty for each count. U.S.S.G. § 2B3.1(b)(1). The PSR recommended several increases pursuant to U.S.S.G. §§ 2B3.1(b), 3B1.1(c), and 3C1.1(A), resulting in a recommended offense level of twenty-nine respecting count one, of thirty-one respecting count two, and of thirty-three respecting count three. Pursuant to U.S.S.G. § 3D1.4, the PSR added a three-point increase to the greatest adjusted offense level for a total offense level of thirty-six. Based on a total offense level of thirty-six and a criminal history category of five, the PSR calculated the then-mandatory guideline range of 292 to 365 months.

On April 1, 2004 the United States District Court for the Northern District of Ohio sentenced Penson to a term of imprisonment of 365 months for these offenses. Penson filed a timely notice of appeal.

While Penson's case was pending on appeal, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and upon agreement of the parties, we remanded for resentencing in light of Booker. Penson, 141 Fed.Appx. at 411-12. The new sentencing hearing began on February 8, 2006 and continued on February 10. At the sentencing hearing on February 8, Penson's counsel argued for an offense level of twenty-two for count one and for an offense level of twenty-eight for counts two and three. The district court disagreed and stated "that my finding of a Total Offense Level of 36 is consistent with what all the facts and circumstances are in the case." Joint Appendix ("J.A.") at 227-28 (2/8/06 Tr. at 10-11).

At the sentencing hearing on February 10, 2006, the district court orally sentenced Penson to imprisonment "on each count for a period of 310 months for each count to run concurrently." J.A. at 244 (2/10/06 Tr. at 9). On February 23, 2006, the district court issued a judgment amending the pre-remand judgment of April 2004. The judgment sentenced Penson to a total term of imprisonment of 310 months, comprised of "240 months on Counts Two and Three to run concurrent and 70 months on Count One to run consecutive." J.A. at 53 (Am. J. at 3).

II. ANALYSIS

A. Sentencing Discrepancies

The district court's oral sentence pronounced at the sentencing hearing differed from the sentence set forth in the written judgment. "[W]hen an oral sentence conflicts with the written sentence, the oral sentence controls." United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988). "When an orally pronounced sentence is ambiguous, however, the judgment and commitment order is evidence which may be used to determine the intended sentence." United States v. Villano, 816 F.2d 1448, 1451 (10th Cir.1987) (en banc), quoted in United States v. Brown, 47 Fed. Appx. 305, 315 (6th Cir.2002) (unpublished), cert. denied, 537 U.S. 1138, 123 S.Ct. 930, 154 L.Ed.2d 833 (2003) and United States v. Shure, No. 88-1899, 1989 WL 49837, at *2 (6th Cir. May 12, 1989) (unpublished); see also Sasser v. United States, 352 F.2d 796, 797 (6th Cir.1965) (noting that "it is true that the pronouncement of sentence represents the judgment of the court and that the order of judgment is merely evidence of the sentence"), cert. denied, 385 U.S. 883, 87 S.Ct. 174, 17 L.Ed.2d 111 (1966). The reason for the primacy of the oral sentence lies in the fact that "[a] defendant is present only when being sentenced from the bench." Villano, 816 F.2d at 1452. Because criminal punishment "affects the most fundamental human rights ... [s]entencing should be conducted with the judge and defendant facing one another and not in secret." Id.

The government argues that the written judgment resolved an ambiguity in the oral sentence. We disagree. The oral sentence contained no ambiguity; the district court clearly sentenced Penson to three concurrent terms of imprisonment of 310 months each. In direct conflict with the oral sentence, the written judgment sentenced Penson to two concurrent terms of 240 months each and one consecutive term of seventy months. The clarity of the oral sentence and the conflict with the written judgment means that we must consider the oral sentence as controlling on appeal. In United States v. Cofield, 233 F.3d 405, 407 (6th Cir.), cert. denied, 532 U.S. 952, 121 S.Ct. 1424, 149 L.Ed.2d 364 (2001), we stated that the district court's failure to mention a supervised-release term at the sentencing hearing constituted only harmless error corrected the same day by the written judgment. Our opinion in Cofield, however, held that the district court could so correct a misstatement only when it related to "`a portion of the sentence that was neither discussed nor disputed by the parties.'" Id. (quoting United States v. Jolly, 129 F.3d 287, 289 (2d Cir. 1997)). In this case, because the defendant and government had disputed the total offense level, the district court's mistake at the oral sentencing was not harmless and could not later be corrected.

In the circumstances of this case, we would treat the written judgment as controlling only if it were to have validly modified the oral sentence. Title 18 U.S.C. § 3582(c)(1)(B) provides that "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." Because the two statutes permitting such a modification—28 U.S.C. §§ 2106 and 2255—are here inapplicable, the district court had jurisdiction to modify the sentence only if permitted by Rule 35. See United States v. Zabawa, 134 Fed. Appx. 60, 67 (6th Cir.2005) (unpublished), cert. denied, 546 U.S. 953, 126 S.Ct. 463, 163 L.Ed.2d 352 (2005). Rule 35 provides that "[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." FED.R.CRIM.P. 35(a). "Sentencing" is defined as "the oral announcement of the sentence." FED.R.CRIM.P. 35(c). In this case, the district court issued the written judgment on February 23, more than seven days after the delivery of the oral sentence on February 10. Therefore, we are precluded from considering the written judgment pursuant to Rule 35 to have corrected any arithmetical mistake by the district court in delivering the oral sentence.

The district court also lacked authority pursuant to Federal Rule of Criminal Procedure 36 to use the written judgment to modify the oral sentence. Rule 36 provides that after giving appropriate notice, the sentencing "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. "A clerical error must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature." United States v. Robinson, 368 F.3d 653, 656 (6th Cir.2004) (quotation omitted). "Rule 36 has been consistently interpreted as dealing only with clerical errors, not with mistakes or omissions by the court." Id. (citing 3 Charles Alan Wright, Nancy J. King & Susan R. Klein, Fed. Prac. & Proc. § 611 (3d ed.2004)). Sentencing Penson orally to three concurrent terms of 310 months, when the written judgment suggests that the district court likely intended to sentence him to two concurrent terms of 240 months and one consecutive term of 70 months, does not constitute a clerical, mechanical error of the sort a clerk might make. The district court did not have authority pursuant to either Rule 35 or Rule 36 to use the written judgment to correct the mistake in the oral sentence. Consequently, we must treat the oral sentence as controlling on appeal.

B. Unlawful Sentence

As we explained above, the district court did not have authority under either Federal Rule of Criminal Procedure 35 or Rule 36 to correct any mistake in the oral sentence via the written judgment and, therefore, the oral sentence is controlling on appeal. The statutory-maximum sentence for a violation of 18 U.S.C. § 2113(a) is twenty years, i.e., 240 months, and for a violation of § 2113(d) is twenty-five years, i.e., 300 months. 18 U.S.C. §§ 2113(a), (d). Thus, in orally sentencing Penson to concurrent terms of 310 months imprisonment for each of the three counts of bank robbery, the district court exceeded its statutory authority and pronounced an unlawful sentence.¹ We must vacate Penson's sentence and remand...