U.S. v. DeMartino

• Decision Date: 23 April 1997
• Docket Number: D,No. 1533,1533
• Citation: 112 F.3d 75
• Parties: UNITED STATES of America, Appellee, v. Vincent DeMARTINO, aka Chickie, Defendant-Appellant. ocket 96-1725.
• Court: U.S. Court of Appeals — Second Circuit

Page 75

112 F.3d 75

UNITED STATES of America, Appellee, v. Vincent DeMARTINO, aka Chickie, Defendant-Appellant.

No. 1533, Docket 96-1725.

United States Court of Appeals Second Circuit.

Argued April 3, 1997.

Decided April 23, 1997.

Andrew Weissmann, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, David C. James, Peter A. Norling, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Appellee.

George L. Santangelo, New York City (Santangelo, Santangelo & Cohen, New York City, on the brief), for Defendant-Appellant.

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

KEARSE, Circuit Judge:

Defendant Vincent DeMartino, convicted of a firearm offense in the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, appeals from an order denying his motion under Fed.R.Crim.P. 36 for a correction of the written judgment of conviction, to conform that judgment to the sentence pronounced on him orally by the court at the sentencing hearing. The district court held that Rule 36 was inapplicable because the deviation of the written judgment from the oral pronouncement was not a clerical or technical error, but was an intentional change by the court because the oral pronouncement did not reflect the court's intention. On appeal, DeMartino urges that we direct the district court to enter written judgment in accordance with the sentence imposed orally. For the reasons that follow, we conclude that relief was not available under Rule 36, but that, since the judgment of conviction improperly deviated from the oral sentence, the written judgment should have been vacated pursuant to 28 U.S.C. § 2255. Because we conclude that the oral sentence too may have been flawed, we remand for resentencing.

I. BACKGROUND

Following a jury trial in 1992, DeMartino, a convicted felon, was found guilty of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). DeMartino possessed the firearm shortly after being released on parole in connection with a conviction for bank robbery; the possession violated the terms of his parole; and as a consequence, DeMartino was promptly reincarcerated to serve the remainder of his term for the robbery conviction. On April 23, 1993, DeMartino appeared before the district court for sentencing on his firearm offense.

At that hearing, as quoted in greater detail in Part II.A. below, the court was informed that the Sentencing Guidelines imprisonment range calculated in the presentence report ("PSR") was 51-63 months; but the court noted, with some approval, DeMartino's position that the proper Guidelines imprisonment range, taking into account various sections, was instead 15-48 months. (See, e.g., Sentencing Transcript, April 23, 1993 ("Tr."), 4, 5, 22.) The court explored at length the question of whether and to what extent the firearm sentence should be imposed concurrently with the robbery/parole violation sentence, pursuant to which DeMartino was expected to be imprisoned for some six more years. (See id. at 5-26.) Ultimately, the court imposed a sentence of 48 months' imprisonment, stating as follows:

I'm going to sentence the defendant to the custody of the Attorney General for a period of 48 months, the sentence to run consecutive with the sentence that the defendant is presently serving.

(Tr. 27.) The court stated that because of the circumstances of DeMartino's firearm possession, to wit, that

almost immediately upon his release from jail he's not only possessing a gun, which he shouldn't possess in violation of the law, but he's basically joined an organized crime family and committed himself to engaging in the occupation of being a criminal,

it was sentencing DeMartino at the high end of what it "loosely characterize[d]" as "the appropriate guideline ranges." (Tr. 27-28.)

On the same day, however, the court signed a written judgment that stated, "THE COURT IMPOSES A SENTENCE OF SIXTY-THREE MONTHS IMPRISONMENT, FORTY-EIGHT OF WHICH IS TO RUN CONSECUTIVELY TO THE SENTENCE HE IS CURRENTLY SERVING." Judgment dated April 23, 1993, entered on docket on April 27, 1993 ("1993 Judgment") (emphasis in original). Notwithstanding that the written judgment's imposition of a 63-month term of imprisonment was inconsistent with the oral sentence of 48 months' imprisonment, DeMartino did not mention that deviation in his unsuccessful direct appeal from the 1993 Judgment.

In July 1993, less than three months after sentencing on the firearm offense, DeMartino was granted early parole on the robbery conviction. Because there was no longer any other sentence with which the firearm sentence could run concurrently, the Bureau of Prisons determined that DeMartino's firearm sentence would run for 63 months from April 23, 1993. In 1995, DeMartino's counsel wrote to the district court asking the court to inform the Bureau of Prisons that in fact, as pronounced orally, DeMartino's sentence was 48 months. The court wrote to defense counsel, stating that the prescribed Guidelines range was 51-63 months, that the court and the parties had assumed that DeMartino would serve several years more on his robbery conviction as a result of his parole violation, and that the principal focus of the hearing had been the extent to which the firearm sentence should be consecutive to the term to be served for the robbery conviction. The court stated that at the end of the proceedings

I orally imposed a sentence of forty-eight months to run consecutively to the sentence the defendant was then serving. What I had meant to say was that I was imposing a sentence of sixty-three months, the maximum permitted by the guidelines, of which forty-eights [sic ] was to be served consecutively and fifteen months concurrently. The formal judgment of conviction, which was signed the same day and docketed on April 27, 1993, corrected this error and resulted in the imposition of a sentence which was understood by the parties to be the same sentence except that it reflected accurately the manner in which it was being imposed. The correction was clearly permitted by F.R.Crim. P., Rule 35(c). See United States v. Abreu-Cabrera, 64 F.3d 67 (2d Cir.1995). No objection was raised at the time and no appeal was taken.

While the subsequent and unanticipated decision of the Parole Board to parole the defendant on the bank robbery charge may now render significant the technical correction made in the judgment of conviction, it does not alter the fact that the sentence imposed is the one reflected there. Indeed, if I had anticipated that the defendant would be paroled on the bank robbery charge, I would have run the entire sentence of sixty-three months consecutively.

(Letter from Judge Korman to Andrew J. Weinstein dated September 12, 1995, at 1-2 (emphases added).)

In August 1996, DeMartino moved in the district court for a correction of sentence pursuant to Rule 36, contending that the written judgment impermissibly changed the sentence that had been imposed on him orally, and that even if the court had the power to increase his sentence, it could do so only in his presence. In a Memorandum and Order dated November 7, 1996 ("1996 Opinion"), the court denied the motion, stating in part as follows:

At a hearing on April 23, 1993, the defendant was sentenced orally to serve forty-eight months. This sentence was to be served consecutively to his parole violation sentence.... This was reduced to writing later that same day in the Judgment of Conviction, which sentenced the defendant to serve sixty-three months, forty-eight of which he would serve consecutively to the parole sentenced and fifteen of which he would serve concurrently with it.

....

Because of the way the argument was framed [focusing principally on the extent to which the firearm sentence should run consecutively to the parole violation sentence], at the conclusion of the April 23 hearing I sentenced the defendant to 48 months consecutive service, inadvertently omitting mention of a period of concurrent service. Later that same day I remedied this oversight and reduced the defendant's sentence to writing in the Judgment of Conviction, which ordered the defendant to serve forty-eight months consecutively and fifteen months concurrently. This brought the total sentence imposed, sixty-three months, within the range permitted by the Guidelines. Indeed, all the parties acknowledge that without such a correction, the sentence would have constituted a downward departure from the permitted range.

Nonetheless, all the parties understood that the Judgment of Conviction effectively imposed the same sentence as had been imposed orally at the April 23, 1993 hearing. At that time, given the defendant's representations that he would serve in excess of another sixty-three months for his parole violation, inclusion of a period of concurrent service in the Judgment of Conviction would not affect the defendant's ultimate release date.

1996 Opinion at 1-3. The court stated that as a result of DeMartino's unexpected early parole,

the defendant's forty-eight-month consecutive and fifteen-month concurrent sentence was effectively transformed into a sentence of sixty-three months consecutive. While this is more consecutive service than the parties anticipated at the time of sentencing, it was the same sentence that I would have imposed if I had known that the defendant would again qualify for parole on the bank robbery charge three months after sentencing.

Id. at 4. While stating that the oral sentence is generally controlling, the court ruled that it had power under Fed.R.Crim.P. 35(c) "to correct a clearly erroneous oral sentence, which is what the Judgment of Conviction accomplished" because the oral sentence did not conform to the Guidelines. 1996 Opinion at 5.

The court also ruled that its failure to have DeMartino present when it corrected the sentence was at most...