U.S. v. Earley, 85-2673

• Decision Date: 21 April 1987
• Docket Number: No. 85-2673,85-2673
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1428

816 F.2d 1428

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant.

No. 85-2673.

United States Court of Appeals, Tenth Circuit.

April 21, 1987.

James W. Berry of James W. Bill Berry & Associates, Oklahoma City, Okl., for defendant-appellant.

Arlene Joplin, Asst. U.S. Atty. (William S. Price, U.S. Atty., and Karla McAlister, Asst. U.S. Atty., on the briefs), Oklahoma City, Okl., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BARRETT, McKAY, LOGAN, SEYMOUR, ANDERSON, TACHA, and BALDOCK, Circuit Judges.

ON REHEARING EN BANC

LOGAN, Circuit Judge.

The only issue in this appeal is whether a federal district judge who failed to state whether sentences he imposed were consecutive to or concurrent with a preexisting federal sentence may order, five months later and after the defendant was imprisoned, that the sentences were to be consecutive. The district judge described his later order as a "clarification ... to eliminate any ambiguity as to the Court's intention." R. I, 41.

Defendant, Patrick Henry Earley, was indicted on five counts and pleaded guilty in November 1984 to two counts of distributing controlled substances, offenses he committed in 1982 while on parole from a twenty-five-year federal sentence. Because of these offenses, Earley had been reincarcerated as a parole violator since 1982 on his earlier sentence; the parole board had specified a tentative re-release date of January 7, 1985.

On January 4, 1985, the district court conducted its sentencing hearing on the offenses at issue here. During the sentencing hearing the court commented that Earley had limited his exposure very substantially by his plea bargain, and declared that because Earley had shown a succession of criminal activity over time, the court saw no reason to credit him with any reduction of time beyond the plea bargain. ¹ But the court did not state whether the Earley was placed in the Federal Reformatory at El Reno, Oklahoma. Less than three months later, on March 28, 1985, Earley appeared with counsel before the parole commission, which scheduled a tentative release date of April 19, 1985. Because of protests it received, the parole commission determined on April 10, 1985, that none of Earley's time spent on parole would be credited against his earlier conviction, resulting in a new tentative release date of December 5, 1985. The commission also set another hearing for May 23, 1985. Apparently one of those complaining about Earley's release date was the district judge who imposed the sentences on the new offenses in January. On May 3, 1985, sua sponte and without a hearing, the district judge entered the "clarification" order at issue here, stating that he had intended that "such total ten (10) year term was to be consecutive to, and not concurrent with, the sentence [Earley] was then serving." R. I, 41. The effect of the May 3 order was to extend Earley's prison term from 1996 to 2006, and to change his earliest eligibility for parole from December 5, 1985, to May 3, 1988.

                new sentences would be served consecutively to or concurrently with the preexisting federal sentence, although during review of the presentence report counsel had informed the court of the recommitment for parole violation, R. II, 4, and the court, apparently referring to the January release date, mentioned that Earley had "just been required to serve out the punishment for another offense."    Id. at 13.  The written judgment and probation/commitment order, signed and filed the same day, also did not state whether the new sentences were to be consecutive to or concurrent with the pre-existing sentence. 2
                

Earley filed a petition to vacate the district court's order, asserting that the increase in his sentence violated his rights under the Double Jeopardy Clause, and a motion to reduce or correct the sentencing under Fed.R.Crim.P. 35. The district court rejected his petition and motion, reasoning that the May 3 order was a clarifying order, not a new, enhanced sentence to which double jeopardy analysis would apply. The court further stated that the federal presumption that sentences run concurrently unless otherwise stated is overcome when it is clear the judge intended the sentences to run consecutively. We reverse.

Our decision here turns on the district court's authority to make its May 3 order. The only statutes or rules we have found permitting a district court to make an order respecting a previously imposed sentence in a criminal case are Federal Rules of Criminal Procedure 35 and 36. Court decisions have recognized some additional power in a sentencing court to enhance or reduce a sentence originally imposed, within certain constitutional limits. We discuss these authorities.

I

Fed.R.Crim.P. 35(b) permits a district court to reduce a sentence, with or without a motion, within 120 days after sentence is imposed or after a mandate has issued from an appellate court pursuant to an appeal. Rule 35(a) permits correction of a sentence "imposed in an illegal manner," within the same time constraints. The court's sua sponte action fits neither provision, nor was it within the time limits of those rules.

Fed.R.Crim.P. 35(a) also allows the district court to correct an illegal sentence at any time. A sentence that is internally ambiguous or self-contradictory to the point that a reasonable person cannot determine what the sentence is may be found illegal. See, e.g., United States v. Patrick Petroleum Corp. of Michigan, 703 F.2d 94, 98 (5th Cir.1982); United States v. Faust, 680 F.2d 540, 542 (8th Cir.1982); United States v. Alverson, 666 F.2d 341, 347-48 (9th Cir.1982); United States v. Moss, 614 F.2d 171, 176 (8th Cir.1980); United States But we have not held that all ambiguous sentences are illegal sentences. This court, and others, have taken the approach that most sentencing ambiguities can be resolved by reviewing the record to determine what the original sentence was; we have not permitted a district court to amend its original pronouncement. Thus, in Baca v. United States, 383 F.2d 154 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968), we used the judgment and commitment order to ascertain the intent of the sentencing judge, from which we identified the terms of the sentence. Id. at 157. We reiterated this rule in United States v. Villano, 816 F.2d 1448 (1987), in which we stated that a written sentence and commitment order may be used to "clarify an ambiguous oral sentence by providing evidence of what was said from the bench." At 1451; see also At 1453.

v. Solomon, 468 F.2d 848, 850-52 (7th Cir.1972), cert. denied, 410 U.S. 986, 93 S.Ct. 1513, 36 L.Ed.2d 182 (1973). Several courts have relied on dicta in Scarponi v. United States, 313 F.2d 950, 953 (10th Cir.1963), for the proposition that any ambiguous sentence is an illegal sentence, correctable under Rule 35(a).

Here both the oral pronouncement by the judge and the written judgment and commitment order said nothing concerning whether the new sentences ran concurrently with or consecutively to the sentence Earley was already serving. The federal courts have adopted a presumption that federal sentences imposed at different times run concurrently, absent an express statement to the contrary. Our circuit recognized the presumption of concurrent sentences in Subas v. Hudspeth, 122 F.2d 85 (10th Cir.1941), in which we stated: "Absent clear language to the contrary, it is presumed that sentences imposed on more than one offense at the same time, or at different times, will run concurrently." Id. at 87. This presumption has in effect become a rule of law. Recognizing it as such, Congress has, by a statute effective November 1, 1987, changed the rule to make federal sentences run consecutively if they are imposed at different times, as here, but kept the concurrency rule for multiple sentences imposed at the same time. ³ Pub.L. No. 98-473, Secs. 212(a)(2), 235(a)(1), 98 Stat. 1837, 2000, 2031-32 (1984), as amended by Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728 (1985) (to be codified at 18 U.S.C. Sec. 3584(a)).

The presumption of concurrent sentences applies here. ⁴ There is no fatal ambiguity

which would render the January 4 sentences illegal and subject to correction by the district court under Fed.R.Crim.P. 35(a). ⁵

II

Fed.R.Crim.P. 36 permits the district court to correct "clerical mistakes" at any time. See United States v. Preston, 634 F.2d 1285, 1294 (10th Cir.1980). There is no contention in this case that a clerical error was made; Rule 36 would not authorize the district court's May 3 order.

III

Finally, the courts have recognized that a sentence does not have immediate "finality," and the court has the power to make corrections or enhance or reduce the sentence for some interim period of time. Historically the courts have considered that the Double Jeopardy Clause imposes constitutional limits on the time within which the district court has the power to alter a sentence.

For example, in United States v. Davidson, 597 F.2d 230 (10th Cir.1979), the defendant was sentenced to two concurrent terms; the court did not state whether the terms were to run consecutively to or concurrently with a federal sentence the defendant already was serving. While the defendant was en route from his sentencing to the prison, the court radioed the escorting United States Marshal to return the defendant to the courthouse. The judge then informed the defendant in open court that his new sentences were to be served consecutively to his existing sentence. Because the defendant had not been transferred into executive custody and had not begun to serve his sentence when the judge clarified his intent, we affirmed the sentence as clarified, concluding that the sentencing procedure did not violate the Double Jeopardy Clause.

In common with most of the circuits, we have adhered to this bright-line rule to address double...