U.S. v. Blackwell, 95-8053

• Decision Date: 11 April 1996
• Docket Number: No. 95-8053,95-8053
• Citation: 81 F.3d 945
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Donald Keith BLACKWELL, Defendant-Appellee. Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 945

81 F.3d 945

UNITED STATES of America, Plaintiff-Appellant, v. Donald Keith BLACKWELL, Defendant-Appellee.

No. 95-8053.

United States Court of Appeals,Tenth Circuit.

April 11, 1996.

Appeal from the United States District Court for the District of Wyoming; Clarence A. Brimmer, Jr., Judge. (D.C. No. 94-CR-105).

Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellant.

Steven A. Wuthrich, Sandy, Utah, for Defendant-Appellee.

Before BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

The district court sentenced Defendant Donald Keith Blackwell to fifteen months imprisonment for conspiring to distribute eight ounces of cocaine. Shortly thereafter, the court learned that Defendant's co-conspirator and supplier pleaded guilty to distributing fifty-five ounces of cocaine and the United States District Court for the District of Utah sentenced her to five-years probation. Concerned with the apparent disparity, the court, on Defendant's motion, convened a hearing seventy-two days after the initial sentence date and resentenced Defendant to three-years probation.

"Federal courts are courts of limited jurisdiction." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994). Congress has authorized the federal courts to modify a sentence only in limited circumstances. Because no congressional enactment authorized the court to modify Defendant's sentence in the instant case, the court lacked jurisdiction to do so. We therefore reverse.

I.

In September 1994, a Wyoming grand jury returned a three-count indictment against Defendant, charging him with conspiracy to possess with intent to distribute and to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (Count I), and possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a), (b)(1)(C) (Counts II, III). In February 1995, Defendant pleaded guilty to Count I of the indictment. In accord with the terms of the plea agreement, on April 17, 1995, the government filed a Motion to Impose Sentence Below the Guideline Range to reflect Defendant's substantial assistance to authorities. The government moved the court to grant Defendant a three-level reduction in his offense level. The motion specified that a three-level reduction would reduce Defendant's offense level to 14, which when combined with criminal history category I, yielded a guideline sentencing range of fifteen to twenty-one months imprisonment.

On April 24, 1995, the court held a sentencing hearing. The court granted the government's Motion to Impose Sentence Below the Guideline Range. The court sentenced Defendant at the low end of the guideline range to fifteen months imprisonment.

On June 14, 1995, Defendant filed a Motion for Resentencing and supported his motion with a later filed brief. In his motion and brief, Defendant alleged that three days prior to his sentencing, Defendant's supplier pleaded guilty to distributing fifty-five ounces of cocaine and the United States District Court for the District of Utah sentenced her to probation. Defendant argued that, in light of this information, his sentence of fifteen months imprisonment was unfair. Defendant maintained that the district court had "almost complete discretion" to depart downward. Defendant cited Fed.R.Crim.P. 35 and requested "the Court ... revisit the sentence in this case to provide for equal justice."

In response, the court scheduled a hearing to determine "whether or not the court's original sentence should be vacated and the defendant resentenced." The government objected and contended the court was without jurisdiction to modify Defendant's sentence. The government argued that neither the Federal Rules of Criminal Procedure nor any federal law empowered the district court to modify Defendant's sentence. Accordingly, the government requested the court vacate the resentencing hearing.

Over the government's objection, the court held the resentencing hearing on July 5, 1995. ¹ The court ruled two alternative sources of authority empowered it to modify Defendant's sentence: (1) the court's "inherent jurisdiction" to right injustices, and (2) Fed.R.Crim.P. 35:

This case, I think, requires the Court to rely on its inherent jurisdiction to prevent an injustice.... [S]o I'm going to make--I'm going to grant the motion for re-sentencing on the grounds of justice, on the ground that the Court has the power nunc pro tunc to change sentences that were the result of a clerical error, and the clear injustice.

[I]t does to me seem just and fair to grant [Defendant's] motion for resentencing as if it were a Rule 35 motion that was made after having cooperated with the United States.

At the conclusion of the hearing, the court resentenced Defendant to three-years probation, with six-months home detention. On July 11, 1995, the court entered a Correction or Reduction of Judgment in a Criminal Case. The caption of the Correction order indicated that judgment was corrected "[p]ursuant to F.R.Crim. P. 35(a), (b), (c), or Rule 36." The government's appeal followed.

II.

On appeal, the government argues that neither Rules 35 or 36, nor the court's "inherent jurisdiction" authorized the court to modify Defendant's sentence in the instant case. The government maintains, therefore, that the court lacked jurisdiction to resentence Defendant. We review de novo the district court's legal determination that it possessed jurisdiction to modify Defendant's sentence. See United States v. Maher, 919 F.2d 1482, 1485 (10th Cir.1990) ("Legal conclusions are reviewed de novo."); Henry, 43 F.3d at 511 ("The determination of the district court's subject matter jurisdiction is a question of law which we review de novo.").

A.

A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so. United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir.1994) ("The authority to change a sentence must derive from some federal statutory authority."); see also United States v. Hardage, 58 F.3d 569, 574 (10th Cir.1995) ("[W]ith the exception of certain powers which truly fit the rubric of 'inherent power,'... federal courts cannot act in the absence of statutory authority."). ² Section 3582(c) of Title 18 of the United States Code provides three avenues through which the court may "modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). A court may modify a sentence: (1) in certain circumstances "upon motion of the Director of the Bureau of Prisons"; (2) "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"; or (3) "upon motion of the defendant or the Director of the Bureau of Prisons," or on the court's own motion in cases where the applicable sentencing range "has subsequently been lowered by the Sentencing Commission." Id. at § 3582(c)(1)(A), (c)(1)(B), (c)(2). Avenues one and three are inapposite to the instant case. Avenue two offers Fed.R.Crim.P. 35 as the only potential source of authority to support the district court's modification of Defendant's sentence. We address the court's authority to modify Defendant's sentence under Rule 35, Rule 36, ³ and its "inherent jurisdiction" in turn.

1.

Rule 35 of the Federal Rules of Criminal Procedure empowers a court to correct or reduce a Defendant's sentence in three specified instances. Subsection (a) authorizes a district court to correct an illegal sentence on remand from a court of appeals. Fed. R. Crim. P. 35(a). Subsection (b) grants a court authority to "reduce a sentence to reflect a defendant's subsequent, substantial assistance" "on motion of the Government made within one year after the imposition of the sentence." Fed.R.Crim.P. 35(b) (emphasis added). Finally, subsection (c) provides that a court "acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(c).

None of these subsections apply to the instant case. Subsection (a) does not apply because the case was not on remand to the district court. Subsection (c) does not apply, inter alia, because the court did not correct Defendant's sentence within seven days after the original sentence was imposed, but resentenced Defendant seventy-two days later. ⁴ See United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.1994) (seven-day time limit imposed by Rule 35(c) is jurisdictional).

This leaves subsection (b). Subsection (b) applies "on motion of the Government made within one year after the imposition of the sentence." Fed.R.Crim.P. 35(b). Because subsection (b) applies only to motions made by the government, a defendant cannot invoke Rule 35(b) and empower the court to reduce his sentence. The Defendant's Motion for Resentencing, therefore, did not give the court authority to resentence him under Rule 35(b). ⁵ Hence, Fed.R.Crim.P. 35(b) did not authorize the district court to resentence Defendant in the instant case. Accordingly, we conclude that Rule 35 did not empower the court to resentence Defendant in the instant case. The court therefore erred in relying on Rule 35.

2.

Rule 36 provides that "[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders." Fed.R.Crim.P. 36. Rule 36 gives the court authority to correct clerical-type errors, Fed.R.Crim.P. 36; see [United States v.] Corey, 999 F.2d at 496-97 [10th Cir.1993] (court may correct clerical error in written judgment under Rule 36), but does not give the court authority to substantively modify a Defendant's sentence. United States v. Werber, 51 F.3d 342, 347, 348 and n. 16 (2d Cir.1995) (collecting...