U.S. v. Abreu-Cabrera

• Decision Date: 23 August 1995
• Docket Number: D,No. 1071,ABREU-CABRER,1071
• Citation: 64 F.3d 67
• Parties: UNITED STATES of America, Appellant, v. Ramon Wilbertoefendant-Appellee. ocket 94-1429.
• Court: U.S. Court of Appeals — Second Circuit

Page 67

64 F.3d 67

UNITED STATES of America, Appellant, v. Ramon Wilberto ABREU-CABRERA, Defendant-Appellee.

No. 1071, Docket 94-1429.

United States Court of Appeals Second Circuit.

Argued March 17, 1995.

Decided Aug. 23, 1995.

David R. Homer, Asst. U.S. Atty., N.D.N.Y., Albany (Thomas J. Maroney, U.S. Atty., Kimberly M. Zimmer, Asst. U.S. Atty., of counsel), for appellant.

Frederick P. Korkosz, Albany, NY, for appellee.

Before: OAKES, CARDAMONE, and ALTIMARI, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal requires us to construe the meaning of Rule 35(c) of the Federal Rules of Criminal Procedure, which governs corrections of sentencing errors. That Rule provides: "The 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." The very language of the Rule, we think, makes clear that a sentencing court is not authorized to change its mind as the winds change, veering away in a trice from a sentence it has correctly imposed, simply because further reflection has caused it to have a change of heart.

The United States (government or appellant) appeals from the sentence imposed at resentencing on defendant Ramon Wilberto Abreu-Cabrera by the United States District Court for the Northern District of New York (Scullin, J.), following defendant's conviction for reentry into the United States after deportation. The government's principal contention is that the district court, by departing downward from the sentencing guidelines, acted beyond the scope of Rule 35(c) when it purportedly "corrected" Abreu-Cabrera's previously imposed sentence. Appellant asks us to vacate the new sentence and reinstate the original sentence imposed on defendant. We reverse and remand for reinstatement of the original sentence.

BACKGROUND

On April 23, 1993 Abreu-Cabrera was deported from New York to the Dominican Republic. Six weeks later he was on an Amtrak train en route from Montreal, Canada, to New York City. During a routine customs train inspection at the Canada-United States border on June 3, 1993, defendant completed a customs declaration form and presented documents showing his identity to be Joseph Romero Figuero, a United States citizen. After initial questioning on the train, Immigration and Naturalization Service (INS) agents requested defendant to go with them to the INS office for further questioning. A search of defendant's luggage revealed a hidden compartment containing a U.S. Alien Registration Card and a passport in his real name. Abreu-Cabrera then admitted his identity, that he had been deported and had a criminal record. He told the agents he had purchased the false documents prior to his deportation.

Abreu-Cabrera was promptly indicted for reentry after deportation, in violation of 8 U.S.C. Sec. 1326, and making a false statement, in violation of 18 U.S.C. Sec. 1001. In October 1993 he pled guilty to the reentry charge. At Abreu-Cabrera's plea allocution, defense counsel alerted the district court to a dispute with respect to defendant's criminal past, relevant because Sec. 1326 carries varying sentence enhancements depending on whether deportation follows a conviction for an aggravated felony or for a non-aggravated felony. The government contended that on September 15, 1988 Abreu-Cabrera had pled guilty in Massachusetts state court to unlawful possession with intent to distribute cocaine--an aggravated felony. Defendant maintained that he had actually pled guilty to a charge of simple possession--a non-aggravated felony. This drug conviction resulted in a one year sentence, of which three months were to be served and the balance suspended. The record reveals that on March 3, 1989 defendant's probation was revoked and he was ordered to serve the remainder of the one year sentence. Abreu-Cabrera returned to the Massachusetts criminal justice system in July 1990 when he pled guilty to two counts of extortion and attempt to commit a crime by extortion for which he received a two and one-half year sentence, six months to be served and the balance suspended.

At a sentencing hearing, held January 21, 1994, the district court determined that Abreu-Cabrera's prior conviction, according to the Massachusetts state court records, was for possession with intent to distribute. Relying on the presentence report prepared by the U.S. Probation Department, the sentencing court then noted the base offense level for Abreu-Cabrera's violation was eight. Because his deportation followed a conviction for an aggravated felony (the Massachusetts drug offense), the offense level was increased by 16. A three-level downward adjustment for acceptance of responsibility resulted in a total offense level of 21. This offense level, combined with a criminal history category of IV, eventuated in a guideline imprisonment range of 57 to 71 months. The district court sentenced Abreu-Cabrera to 57 months imprisonment, two years supervised release, and a $50 special assessment.

Four days later, on January 25, 1994, prior to the entry of judgment reflecting the orally imposed sentence, the district court issued an order stating it "may not have been apprised of and considered all relevant factors" in sentencing Abreu-Cabrera, "and therefore wishe[d] to consider correcting the sentencing pursuant to Rule 35(c) of the Federal Rules of Criminal Procedure." It noted this could not be accomplished within the seven days after the imposition of sentence, as provided for by Rule 35(c), and therefore reserved the right to correct the sentence, if error was found.

In March 1994 defendant moved for reconsideration of his sentence, challenging both the finding that his prior conviction had been for an aggravated felony and the calculation of his criminal history category. The government filed papers in opposition. At the sentencing hearing held on July 15, 1994 the district court stated it was going to reconsider its sentence calculation under Rule 35(c), per its January 25 order.

At the hearing, the trial court determined its previous guidelines calculations were correct. However, it decided to depart downwardly from those guidelines pursuant to U.S.S.G. Secs. 4A1.3 and 5K2.0, stating that "defendant received a statutory minimum for a single cocaine offense for an undisclosed amount," and that a departure was therefore warranted since his "conduct significantly differ[ed] from the norm." As further bases for downward departure, the sentencing court noted Abreu-Cabrera's deportation was three years after his drug conviction, he was attempting to reenter to rejoin his family, and there was little threat of recidivism. It concluded Abreu-Cabrera's criminal history was overrepresented and "horizontally" departed from a criminal history category of IV to III. ¹ Based on a total offense level of 21 (unchanged) the guidelines imprisonment range was 46 to 57 months. The sentencing court then "vertically" departed and sentenced Abreu-Cabrera to 24 months imprisonment, two years supervised release and a $50 special assessment. This resentencing prompted the present appeal.

DISCUSSION

I Rule 35(c)

The government contends the district court lacked authority under Rule 35(c) to resentence Abreu-Cabrera. According to it, that court's decision to depart downwardly from the sentencing guidelines does not constitute a correction of the type of arithmetical, technical, or other clear error envisioned by Rule 35(c). In addition, the government avers that the "correction" occurred after the expiration of the period provided for by the rule.

A. History of Rule 35(c)

To understand the narrow scope of Rule 35(c) it is helpful to review its recent history. It was amended as part of the Sentencing Reform Act of 1984. See United States v. Cook, 890 F.2d 672, 674 (4th Cir.1989) (citing Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, Sec. 215(b), 98 Stat. 1837, 2015). Prior to the effective date of that amendment, Rule 35 "allowed a sentencing judge substantial latitude to amend a sentence after the public sentencing hearing." Id. "The underlying purpose [of the amendment] was to impose on the new sentencing system a requirement that the sentence imposed in the public forum during the sentencing hearing would remain constant, immune from later modification." Id. at 674-75.

Under the amended version of Rule 35, effective November 1, 1987, a district court was granted authority to correct a sentence after remand from the court of appeals, Rule 35(a), and to reduce a sentence in response to a government motion due to a defendant's subsequent substantial assistance in investigations and prosecutions, Rule 35(b). Read literally, a district court no longer had the authority to correct its own sentencing errors, sua sponte or upon motion by the parties. See United States v. Lopez, 26 F.3d 512, 517 (5th Cir.1994); United States v. Corey, 999 F.2d 493, 495 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 574, 126 L.Ed.2d 473 (1993); United States v. Fraley, 988 F.2d 4, 6 (4th Cir.1993).

At least two circuits held that district courts retained the inherent power, notwithstanding the amended Rule 35, to correct obvious sentencing errors during the period in which any party could file a notice of appeal. See United States v. Rico, 902 F.2d 1065, 1067-68 (2d Cir.), cert. denied, 498 U.S. 943, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990); Cook, 890 F.2d at 675. In Cook, the Fourth Circuit held that a district court had the power to correct sua sponte a sentence where it stated that a particular kind of sentence was to be imposed (incarceration followed by community confinement) and then imposed a different sentence (community confinement followed by supervised release) solely due to a misinterpretation of the sentencing guidelines. See id. at 674-75. The Cook court's holding was narrow, extending only to obvious mistakes. The court stated, "[t]he power of a...