U.S. v. Jolly, 475
| Citation | 129 F.3d 287 |
| Decision Date | 21 November 1997 |
| Docket Number | D,No. 475,475 |
| Parties | UNITED STATES of America, Appellee, v. K. Douglas JOLLY, Defendant-Appellant. ocket 97-1074. |
| Court | U.S. Court of Appeals — Second Circuit |
Darrell B. Fields, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, for Defendant-Appellant.
Thomas Spina, Jr., Asst. U.S. Atty. for the Northern District of New York, Albany, New York (Thomas J. Maroney, United States Attorney, of counsel), for Appellee.
Before: WINTER, Chief Judge, CARDAMONE, Circuit Judge, and POLLACK, District Judge. *
K. Douglas Jolly appeals from his resentencing by Chief Judge McAvoy. See United States v. Jolly, 102 F.3d 46 (2d Cir.1996) ( for resentencing). The written judgment entered after resentencing requires Jolly to make restitution in monthly amounts higher than those ordered at the oral pronouncement of his resentence. Jolly contends that, when there is a variance in a sentence between the oral pronouncement and the written judgment, the terms of the oral pronouncement generally govern and that he is therefore entitled to have his written judgment amended to reflect the lower monthly payments specified in the oral pronouncement.
We disagree. Although Jolly is correct that the oral sentence generally controls when a variance exists between the oral pronouncement and the written judgment, the facts here compel us to create an exception to the general rule.
On February 12, 1996, Jolly pleaded guilty to a one-count information charging him with mail fraud in violation of 18 U.S.C. § 1341. At his original sentencing proceeding, the district court, after adding a two-level enhancement for Jolly's abuse of a position of trust and departing downward two levels based on Jolly's substantial assistance, determined Jolly to have a base offense level of 13. The court then imposed a sentence of 13 months' imprisonment and ordered Jolly to make restitution of $810,000, payable "at a minimum of $200 a month or 20 percent of your gross income, whichever's greater." The written judgment of sentence entered by the district court shortly thereafter contained the same terms. At no time did Jolly object to the schedule of the monthly restitution payments.
Jolly appealed but challenged only the two-level enhancement he received under Section 3B1.3 for the abuse of a position of trust. We held that the imposition of a two-level enhancement was error and remanded the case for resentencing. See id. The district court resentenced Jolly on January 13, 1997.
At the resentencing hearing, the district court subtracted the two-level enhancement, resulting in a revised base offense level of 11. The court then ordered a prison sentence of one year and one day and also reimposed restitution in the amount of $810,000. Despite the fact that the restitution payment schedule was neither contested by Jolly nor discussed at any point during the resentencing hearing, the court altered the original terms of the schedule, stating that payments should be made by Jolly "at a minimum amount of $100 a month or 10 percent of your gross income, whichever is greater." The amended written judgment issued by the court on January 15, 1997, however, in turn differed from the oral pronouncement. It reimposed the original payment schedule, specifying that Jolly was to make restitution in "a minimum amount of $200.00 monthly or twenty percent (20%) of defendant's gross income, whichever is greater." This appeal followed.
Jolly contends that because the district court's written judgment of sentence differed from its oral pronouncement at the resentencing, we must remand the case to the district court with instructions to amend the written judgment to conform to the oral pronouncement. The government asks us to remand but also to allow Chief Judge McAvoy to determine which is the correct sentence. We agree with the government.
It is true that "if there is a variance between the oral pronouncement of sentence and the written judgment of conviction, the oral sentence generally controls." United States v. DeMartino, 112 F.3d 75, 78-79 (2d Cir.1997). In this case, the payment schedule imposed in the written judgment plainly conflicts with the unambiguous payment schedule described by the court in its oral pronouncement. Therefore, if we were to apply the general rule, we would remand the case with instructions to conform the written judgment to the oral...
To continue reading
Request your trial
-
Richardson v. Chi. Transit Auth.
... ... While Richardson does not ask us to hold that all obese individualsfound to be as high as 39.8% of the American adult population 8 ... ...
-
United States v. Ewing
...regarding a portion of the sentence that was neither discussed nor disputed by the parties." Id. at 407 (quoting United States v. Jolly, 129 F.3d 287, 289 (2d Cir. 1997)). Ewing argues that Cofield is distinguishable because there, the omitted supervised release term was mandatory. He asser......
-
U.S. v. Rosario, 03-1686-CR.
...double jeopardy was no bar because there had been no sentencing at all at the defendant's initial appearance. 4. In United States v. Jolly, 129 F.3d 287, 289-90 (2d Cir.1997), we initially authorized the same opportunity for reimposition of the written sentence as we later authorized in Han......
- Richardson v. Chi. Transit Auth.