U.S. v. McAfee, 87-5551

• Decision Date: 25 November 1987
• Docket Number: No. 87-5551,87-5551
• Citation: 832 F.2d 944
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George E. McAFEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 944

832 F.2d 944

UNITED STATES of America, Plaintiff-Appellee, v. George E. McAFEE, Defendant-Appellant.

No. 87-5551.

United States Court of Appeals, Fifth Circuit.

Nov. 25, 1987.

P. Joseph Brake, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

Janet E. Bauerle, Le Roy Morgan Jahn, Pamela Ann Mathy, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, JOLLY and JONES, Circuit Judges.

PER CURIAM:

I.

George E. McAfee contends that a district court order ruling violates the double jeopardy clause. The order conformed an earlier entered sentence for escape to the court's original intent that it run consecutively with rather than concurrently to the sentence McAfee was serving at the time of his escape.

II.

During service of a sentence imposed in the Western District of Texas, McAfee was placed in a San Antonio halfway house in preparation for his release on parole. McAfee left the house on October 16, 1986 and did not return. After his arrest in January of 1987, McAfee pled guilty to a flight from custody charge.

At the sentencing hearing, McAfee's attorney requested a concurrent sentence. The district judge responded that "generally in this Court's mind, I don't think about concurrent sentences, when I've learned of escape." The judge also stated that "[t]he Court will not run a concurrent sentence." ¹

The oral pronouncement of sentence and the written judgment, entered on the same day as the sentencing hearing, imposed a five-year term of imprisonment, with 179 days to be served and the balance to be suspended. However, the oral pronouncement ² and written judgment did not indicate whether the sentence for escape would run concurrently or consecutively to the remainder of the sentence that McAfee was serving at the time of his flight from custody.

One month after entering the sentence, the district court sua sponte entered an order to correct a "clerical mistake" in the written judgment. ³ The corrected written judgment explicitly imposed a consecutive sentence. ⁴

McAfee alleges that the original sentence entered by the judge, which was silent on the subject of when it commenced, should be presumed to run concurrently. He contends that the district court's order clarifying its earlier intention to impose a consecutive sentence constitutes a new sentence that increases his punishment. Therefore, McAfee argues, this increase in punishment violates the Fifth Amendment prohibition against resentencing for the same offense. We find the premise of McAfee's argument flawed.

III.

The terms of an oral pronouncement that clearly provide for a consecutive or concurrent sentence control a contrary, silent or ambiguous written judgment. United States v. Kindrick, 576 F.2d 675, 677 (5th Cir.1978). When the oral pronouncement of sentence does not resolve whether a sentence runs consecutively or concurrently, the clearly expressed intent of the sentencing judge discerned from the entire record controls. Schurmann v. United States, 658 F.2d 389, 391 (5th Cir.1981). Finally, a presumption of concurrence operates to bar later imposition of a consecutive sentence when the oral pronouncement of sentence, the written judgment and the record do not clearly reveal the intent of the sentencing judge. United States v. Naas, 755 F.2d 1133, 1135-36 (5th Cir.1985).

In this case, the oral pronouncement can be characterized as either silent or ambiguous as to whether the escape sentence is concurrent or consecutive. We therefore examine the entire record to determine the judge's intent. While the written judgment is silent, the transcript of the sentencing hearing indicates an intent to impose a consecutive sentence. See supra note 1 and accompanying text. In response to allocution, the judge expressly stated his...