630 Fed.Appx. 816 (10th Cir. 2015), 14-3239, United States v. Hendrix

Docket Nº:14-3239
Citation:630 Fed.Appx. 816
Opinion Judge:Scott M. Matheson, Jr. Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL HENDRIX, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: Debra Barnett, Annette B. Gurney, Office of the United States Attorney, District of Kansas, Wichita, KS; James A. Brown, Office of the United States Attorney, District of Kansas, Topeka, KS; Carrie N. Capwell, Office of the United States Attorne...
Judge Panel:Before LUCERO, HOLMES and MATHESON, Circuit Judges. LUCERO, J., dissenting. LUCERO, J., dissenting.
Case Date:October 28, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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630 Fed.Appx. 816 (10th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MICHAEL HENDRIX, Defendant - Appellant

No. 14-3239

United States Court of Appeals, Tenth Circuit

October 28, 2015

UNPUBLISHED OPINION

(D.C. No. 6:03-CR-10148-MLB-1). (D. Kan.).

For United States of America, Plaintiff - Appellee: Debra Barnett, Annette B. Gurney, Office of the United States Attorney, District of Kansas, Wichita, KS; James A. Brown, Office of the United States Attorney, District of Kansas, Topeka, KS; Carrie N. Capwell, Office of the United States Attorney, District of Kansas, Kansas City, KS.

For Michael Hendrix, Defendant - Appellant: Steven K. Gradert, Office of the Federal Public Defender, District of Kansas, Wichita, KS; Andrew John McGowan, Office of the Federal Public Defender, District of Kansas, Topeka, KS.

Before LUCERO, HOLMES and MATHESON, Circuit Judges. LUCERO, J., dissenting.

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ORDER AND JUDGMENT [*]

Scott M. Matheson, Jr. Circuit Judge

Two-and-a-half hours after sentencing Michael Hendrix for violating the terms of his supervised release, the district court imposed an additional year of supervised release. Mr. Hendrix appeals, arguing the district court lacked jurisdiction to do so. We agree. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reverse and remand.

I.

BACKGROUND

On September 27, 2004, Mr. Hendrix pled guilty to two counts of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). The district court sentenced him to 96 months in prison followed by a three-year term of supervised release, which began on June 21, 2012. The Government subsequently petitioned to revoke Mr. Hendrix's supervised release based on allegations that he had (1) failed to comply with the policies and procedures of his residential reentry center, (2) failed to participate in mental health and/or sex offender treatment, and (3) possessed sexually explicit materials.

At his October 6, 2014 revocation hearing (" first revocation hearing" ), Mr. Hendrix admitted to the violations. After describing Mr. Hendrix as a danger to the community and recommending that he be " lock[ed] . . . up for the rest of [his] life," the district court sentenced Mr. Hendrix to two years in prison. ROA, Vol. 3 at 16-17. When the court asked whether it had " covered everything," defense counsel replied, " I believe so, Your Honor." ROA, Vol. 3 at 17. The court concluded the proceeding and went into recess at 1:10 p.m.

At 3:50 p.m., the district court reconvened the hearing (" second revocation hearing" ). The court advised the parties that in " imposing the two-year sentence today, [it] neglected to cover the matter of supervision and clarify that there's a one-year term of supervision." ROA, Vol. 3 at 17-18. Mr. Hendrix did not object, and the hearing concluded at 3:51 p.m. Mr. Hendrix now appeals, arguing the district court lacked jurisdiction to impose the one-year term of supervised release.

II.

DISCUSSION

A.

Standard of Review

Because Mr. Hendrix's claim of error implicates subject matter jurisdiction, we

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review the district court's ruling de novo. United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (" We review de novo the district court's legal determination that it possessed jurisdiction to modify Defendant's sentence." ). We do so even though Mr. Hendrix failed to object in district court. See

United States v. Washington, 653 F.3d 1251, 1257 (10th Cir. 2011) (" [D]efects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court." (citation omitted)).

B.

Jurisdiction and Rule 35

Federal courts " lack jurisdiction to modify a term of imprisonment once it has been imposed," except where a modification is " statutorily authorized." United States v. Graham, 704 F.3d 1275, 1277 (10th Cir. 2013). A sentence becomes final when there is a " formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished." United States v. Luna-Acosta, 715 F.3d 860, 865 (10th Cir. 2013) (quotation omitted). Because the imposition of supervised release followed a " formal break in the proceedings," Mr. Hendrix contends the district court could impose supervised release--thereby modifying his sentence--only if it derived its jurisdiction from a statutory exception. We agree.

The only potentially relevant exception is a court's power to " modify an imposed term of imprisonment to the extent . . . expressly permitted by . . . Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). Under that rule, " [w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear...

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