U.S. v. Restrepo
| Decision Date | 18 February 1993 |
| Docket Number | D,No. 700,700 |
| Citation | 986 F.2d 1462 |
| Parties | UNITED STATES of America, Appellee, v. Carlos RESTREPO; Jorge Orrego; Carlos Andrade; Jose Rincon; Aquilera Martinez; Alexander Lara; Moises Gomez; Omar Ospima, and Ana Ruiz, Defendants, Jose Rivera, Defendant-Appellant. ocket 92-1417. |
| Court | U.S. Court of Appeals — Second Circuit |
Larry Silverman, New York City, for defendant-appellant.
David James, New York City, Asst. U.S. Atty. E.D.N.Y. (Andrew J. Maloney, U.S. Atty.), for appellee.
Before: PRATT, MAHONEY, Circuit Judges, and DANIEL M. FRIEDMAN, Circuit Judge, of the United States Court of Appeals for the Federal Circuit, sitting by designation.
Defendant Jose Rivera pled guilty on the third day of his trial to four counts of the superseding indictment, and was sentenced on each of the four counts concurrently to 168 months. He appealed that judgment contending (1) that the district court should have permitted him to withdraw his plea of guilty and (2) that the district court erred in applying various provisions of the sentencing guidelines to his situation. By summary order dated January 13, 1993, 990 F.2d 622, we affirmed his conviction in all respects.
On this motion for reargument defendant's counsel, Larry J. Silverman, urges that we overlooked his contention that the sentence on Count 2 exceeded the statutory maximum of five years. He also contends that we gave inadequate consideration to his claims that the district court had failed to comply with Fed.R.Crim.P. 11 and that the district court had erred in its guidelines determinations as to the base offense level, defendant's role in the offense, and the enhancement for obstruction of justice. After reconsideration, we still see no merit in defendant's claims of errors with respect to rule 11 and with respect to the district court's application of the sentencing guidelines.
We do wish to thank defense counsel, however, for finally bringing to our attention in a proper manner the district court's error in imposing a 168-month sentence on Count 2, conspiracy to launder money in violation of 18 U.S.C. §§ 371 and 1956. The statutory maximum for that count is five years; any sentence in excess thereof would be legally erroneous and must be corrected.
We note that the statutory maximum was not simply overlooked by the district court. The transcript of the sentencing proceeding reports that the court and counsel discussed the maximum sentence on Count 2. Because the oral sentence controls over a subsequent erroneous judgment, United States v. Marquez, 506 F.2d 620, 622 (2d Cir.1974), we must look to the actual sentence imposed. Unfortunately, when the court did pronounce sentence it said, "On count 2, so that's 62 months." Of course, the correct figure would have been 60 months. To eliminate any doubt this court obtained and listened to the original tape recording of the proceeding. While the district judge clearly stated "62 months", we are satisfied that he simply misspoke, perhaps blending "Count 2" with "60 months", and that he intended to impose the correct sentence of 60 months.
We also note that on the appeal counsel mentioned this error only in one of the 28 footnotes appended to his 50-page...
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