U.S. v. Allen
| Decision Date | 22 January 1979 |
| Docket Number | No. 78-2240,78-2240 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert J. ALLEN, Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Theodore J. Sakowitz, Federal Public Defender, Miami, Fla., for defendant-appellant.
Jack V. Eskenazi, U. S. Atty., Charles O. Farrar, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, GEE and FAY, Circuit Judges.
Defendant appeals from an order of the district court denying his motion to vacate a "Corrected and Amended Judgment and Commitment Order." After pleading guilty to three counts of an indictment relating to mail fraud, the district court sentenced defendant to 42 months of confinement. The order specified that the sentence run concurrently with a prior sentence which had been imposed in July 1976 by the State of Texas which defendant was then serving and that defendant receive full credit for all time spent in state custody since July 1976.
Several months after sentencing, the district court, Sua sponte, and without defendant present entered a "Corrected and Amended Judgment and Commitment Order" in which it modified the term of imprisonment to approximately 29 months and omitted the concurrent service provision. To reach the corrected sentence, the court computed the actual number of days defendant had been in state custody, deducted that time from the original 42-month sentence, and resentenced defendant, omitting the concurrent service provision. Neither defendant nor his counsel was present when the court modified the judgment and commitment order.
In response to defendant's Motion to Vacate the Amended and Corrected Judgment because defendant had not been provided an opportunity for allocution, the district court held a special hearing attended by defendant and his counsel. The motion to vacate was denied, but the district court amended its order to specify that defendant be eligible for parole under 18 U.S.C.A § 4205(b)(2). We affirm because defendant was provided full opportunity for allocution at the subsequent hearing, and the district court lacked authority to order a federal sentence to run concurrently with a prior state sentence. 18 U.S.C.A. § 3568.
Defendant argues that the modified sentence is illegal because it was entered in his absence and without his having been given an opportunity for allocution, and the revised sentence had the practical effect of subjecting him to a longer period of confinement.
While it was error for the district court to enter the amended judgment and commitment order without the presence of the defendant and without an opportunity for allocution, this error was cured by the full allocution afforded defendant at the special hearing in district court. Caille v. United States, 487 F.2d 614, 616-17 (5th Cir. 1973); Fed.R.Crim.P. 43.
Federal law does not authorize federal courts to order sentences which run concurrently with state sentences. In pertinent part 18 U.S.C.A. § 3568 provides:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.
No sentence shall prescribe any other method of computing the term.
The...
To continue reading
Request your trial
-
U.S. v. Aleman
...sentence. If the recommendation is followed, then the state and federal sentences in effect become concurrent. United States v. Allen, 588 F.2d 183, 185 (5th Cir. 1979). Such a recommendation is entirely discretionary with the sentencing judge. That there is a factual relationship between t......
-
U.S. v. Holmes
...1148 (5th Cir.1979) (en banc). 29 Correction of a sentence can occur even if service of the sentence has begun, United States v. Allen, 588 F.2d 183, 185 (5th Cir.1979), even if the correct sentence may be more onerous to the defendant than the original, e.g., Llerena v. United States, 508 ......
-
State v. Fraser
...it to be corrected) to bring it into compliance with the statute, even though the corrected sentence is more onerous. United States v. Allen, 588 F.2d 183 (5th Cir.1979); Llerena v. United States, 508 F.2d 78 (5th Cir.1975). An illegal sentence can be corrected by a trial court before an ap......
-
U.S. v. Rosario, 03-1686-CR.
...sentence with the defendant present.3 See Caille v. United States, 487 F.2d 614, 616-17 (5th Cir.1973); see also United States v. Allen, 588 F.2d 183, 184 (5th Cir.1979) (error in modifying, in defendant's absence, impermissible attempt to run sentence concurrently with state sentence cured......