U.S. v. Guevremont

• Decision Date: 30 October 1987
• Docket Number: No. 86-5827,86-5827
• Citation: 829 F.2d 423
• Parties: UNITED STATES of America, Appellee, v. Pierre GUEVREMONT, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 423

829 F.2d 423

UNITED STATES of America, Appellee, v. Pierre GUEVREMONT, Appellant.

No. 86-5827.

United States Court of Appeals Third Circuit.

Argued July 13, 1987.

Decided Sept. 22, 1987.

Rehearing and Rehearing En Banc Denied Oct. 30, 1987.

William J. Prout, Jr., Brian C. Matthews (argued), Tompkins, McGuire & Wachenfeld, Newark, N.J., for appellant.

Samuel A. Alito, Jr., U.S. Atty., Samuel P. Moulthrop, Chief, Appeals Div. John P. Lacey (argued), Asst. U.S. Atty., Newark, N.J., for appellee.

Before HIGGINBOTHAM, BECKER and HUNTER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

18 U.S.C. Sec. 3651, the so-called "split sentence" statute, empowers the judge to

impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.

Where a defendant has been convicted of only one count, the split sentence is the only vehicle by which a defendant can be both incarcerated and placed on probation. See A. Partridge, A. Chaset & W. Eldridge, The Sentencing Options of Federal District Judges at 6 (Federal Judicial Center, June 1983). In this single count case, the district court had sentenced defendant Pierre Guevremont to an eighteen month sentence of incarceration, but, pursuant to Federal Rule of Criminal Procedure 35(b), ¹ desired to reduce the sentence to time served (52 days) with a probationary term to follow (with attendant conditions including restitution of a huge sum garnered by Guevremont's fraud). However, in imposing the reduced sentence, the able district judge inadvertantly failed to pronounce what is required by Sec. 3651--that the execution of the balance of the period of incarceration would be suspended and the defendant placed on probation. Instead, the court orally modified the sentence to time served and, in the written rendition, vacated the original sentence in order to reimpose a term of 52 days. It therefore suspended nothing--given the way in which sentence was reimposed, there was nothing left to suspend--but nonetheless also imposed a term of probation with a restitution condition.

Guevremont moved to vacate the probationary term, and therefore the restitution condition, as illegal, claiming that when the district court resentenced him to time served it had exhausted its power to sentence on the single count. In his view, the successive probationary term was a second sentence on a single count conviction that constituted an impermissible increase in sentence. The district court, purporting to rely on Federal Rule of Criminal Procedure 36, which is entitled "Clerical Mistakes," entered a corrected judgment correcting the amended sentencing order by performing the proper steps--i.e., suspending the portion of the original sentence that Guevremont had not served and placing him on probation for three years with a condition of restitution. Guevremont appeals from the corrected judgment, alleging that the court's power to correct the sentence extended only to vacatur of the allegedly illegal order of probation and therefore the accompanying order of restitution.

We conclude that Rule 36 does not support the district court's position, for the district court revamped the entire sentence instead of confining itself to the correction of a clerical error. However, we believe that Guevremont's sentence, as imposed after the initial Rule 35 proceeding, was illegal and that the district court therefore had the power to correct that illegal sentence under Rule 35(a). Rejecting Guevremont's arguments, we conclude that there was no constitutional or other inhibition restricting this correction of sentence because inhibition restricting possible judicial vindictiveness is removed by the fact that (1) the sentencing judge's intentions were made clear, (2) the correction simply makes the sentence conform to the sentencing judge's original and interdependent sentencing plan, and (3) Guevremont was neither surprised nor prejudiced by the change in his sentence, for he had induced the court to reduce the sentence by his promise of restitution.

We will therefore affirm the challenged judgment.

I. FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. The First Interstate Bank of California erroneously credited monies to Guevremont's account. Unlike the familiar $200 "bank error in your favor" in the board game "Monopoly," this error involved approximately $325,000. After squandering the money, Guevremont informed the authorities. Thereafter, he attempted to bargain with the bank with respect to the amount and mode of repayment and, after these attempts failed, he was charged with wire fraud, 18 U.S.C. Sec. 1343.

On November 23, 1983, after pleading guilty to one count of wire fraud, Guevremont was sentenced by the district court to eighteen months in prison. Twenty days later, Guevremont moved for a reduction of sentence pursuant to Federal Rule of Criminal Procedure 35(b). On January 13, 1984, the district court held a hearing during which testimony was received to the effect that: (1) since Guevremont was a Canadian citizen and had received a sentence of greater than one year, he would not be allowed back in the United States if his sentence were not reduced; (2) during Guevremont's trip to his ultimate place of confinement, the U.S. correctional institution at Sandstone, Minnesota, he was housed in isolation at several federal prisons, causing him considerable suffering; and (3) the prison he was finally transferred to was so far from his family that it was a physical hardship for them to visit him.

During the hearing, Guevremont's attorney stated on Guevremont's behalf:

I called the bank after the sentencing and said that I have talked to Mr. Guevremont and when he gets out he will pay you [i.e., the bank] back, that he will pay you anyway. He owes you the money and no matter what, he will start making payment as soon as he gets out of jail.... [E]ven after ... your Honor's sentence, Mr. Guevremont said, tell the bank they could--I am going to pay them back when I get out here.... He said that you [the bank] would get paid.

Transcript of Sentence, Jan. 13, 1984, at 6. There was also testimony that an unsigned formal agreement had been made under which Guevremont had started to pay back the money. Additionally, Guevremont's mother made an emotional plea for leniency.

The district court, expressing its concern about the importance of restitution, and believing that probation with an order of restitution would ensure that Guevremont paid back the money, granted the motion and reduced the sentence by "modifying" it to time served plus a period of five years probation with restitution as a condition of probation. The court's oral order stated as follows:

The Court will enter the following Order. The sentence heretofore entered on November 23, 1983 is hereby modified and reduced to time served, which means he is free, today. But the further provision, the defendant is placed on probation for a period of five years. The defendant shall make restitution to the financial institution.... This comes under our new witness/victim impact statement, [sic: Victim and Witness Protection Act] 18 U.S. Code, Section 3579 and 3580.

Sentence of the Defendant, p. 9 (emphasis added). The written order, also of January 13, 1984, stated:

It is on this 13th day of January, 1984, hereby ORDERED:

1. The sentence heretofore rendered on November 23, 1983, as reflected in the judgment and commitment order dated and entered November 28, 1983, is VACATED; and

2. It is ADJUDGED that the defendant is committed to the custody of the Attorney General or his authorized representative for a term of imprisonment commencing November 23, 1983, and extending to January 13, 1984, with a five (5) year probation period to commence upon defendant's completion of said term of imprisonment.

(emphasis added)

Seizing on putative errors and omissions in the January 13, 1984 order, Guevremont moved to correct the sentence pursuant to Rule 35(a) by requesting the deletion of the probationary period and the accompanying order of restitution. These requests would have changed the sentence to simply time served. ² His principal argument was that, despite its apparent intention to impose a "split sentence" which would support a probationary term on a one count conviction, the district court neglected to utter the "magic words" that the execution of the balance of the term of imprisonment was suspended. The district court denied defendant's motion to vacate the period of probation with its attendant requirement of restitution; rather, relying on Federal Rule of Criminal Procedure 36, it issued a corrected judgment:

It is on this 20th day of October, 1986, ORDERED that:

The sentence heretofore rendered on November 23, 1983, as reflected in the judgment and commitment order dated and entered November 28, 1983, and as further reflected in the order of January 13, 1984, is CORRECTED as follows:

1. It is ADJUDGED that the defendant is committed to the custody of the Attorney General or his authorized representative for a term of eighteen months imprisonment to serve that period of time commencing November 23, 1983, and extending to January 13, 1984; the balance of the term sentence is suspended, with a five (5) year probation period to commence upon defendant's completion of said term of imprisonment.

2. The defendant shall reimburse the First Interstate Bank of California, Los Angeles, California, in the amount of $310,000.00 ³ in accordance with a payment schedule presented to the court and which may be modified by the Probation Department if circumstances warrant; the reimbursement of the aforesaid sum of $310,000.00 shall also...