U.S. v. Stevens, 76-2564
Decision Date | 24 February 1977 |
Docket Number | No. 76-2564,76-2564 |
Citation | 548 F.2d 1360 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Edward STEVENS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Samuel G. Jackson, Jr., Deputy Federal Public Defender (argued), James R. Dunn, Nicholas R. Allis, Los Angeles, Cal., for defendant-appellant.
John P. Newman, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS, KOELSCH and HUFSTEDLER, Circuit Judges.
This appeal challenges the trial court's correction of an error in the sentencing of defendant Stevens. We affirm on the ground that a timely correction of an illegally imposed sentence was accomplished. (Fed.R.Crim.P. 35.)
Stevens was charged with three bank robberies in districts outside the Central District of California, and these cases were transferred to that district pursuant to Rule 20 (Fed.R.Crim.P. 20) for plea and sentencing. The plea bargain struck was an agreement that, among other things, a set of concurrent 10-year sentences would be the appropriate disposition. 1 (See Fed.R.Crim.P. 11(e)(1)(C).) During the Rule 11 proceedings, defense counsel brought to the court's attention that Stevens understood the agreement to be concurrent sentences of up to 10 years while counsel understood it to be concurrent straight 10-year sentences. The judge inquired into this matter, and Stevens was informed that under the terms of the agreement the court would not be able to exercise discretion to set the terms at less than 10 years. 2 Stevens declined to reject the agreement as clarified, and the court accepted the plea agreement. When sentence was pronounced, however, the judge stated that the sentences were for two years. The written judgment and commitment conformed to the oral sentence, also stating two-year terms. 3 One week later there was a reappearance to correct the error. The judge stated that its purpose was to correct "a clerical error in the typing of the judgment." The prosecutor stated that Rule 35 was the appropriate rule under which to correct the sentence. At Stevens' request, the matter was continued to permit further negotiations with prosecutors in the transferor districts. After another week, a second appearance was held. The judge was informed that the transferor districts were "not willing to accept the defendant's backing out of that Rule 11(c) sentence," and that Stevens did not wish to withdraw his plea. The judge then corrected the sentence to concurrent 10-year terms. 4 Stevens appeals from this sentence claiming it was improper to correct the sentence to increase it to ten years.
We hold that the action taken by the judge was a valid correction of an illegally imposed sentence under Rule 35. Rule 36 5 does not apply because there was no "clerical" mistake; the judge said "two," when he meant to say "ten." 6 The mistake comes squarely within Rule 35. (See Nicholson v. United States (9th Cir. 1962) 303 F.2d 161, 163; 8A Moore's Federal Practice (2d ed. 1976) P 36.02.) The 1975 amendments to Rule 11 were intended to preclude the exercise of discretion in a Rule 11(e)(1)(C) situation.
The court was without authority both to accept the plea agreement and to impose concurrent two-year terms. The two-year sentences could have been validly imposed for bank robbery offenses absent the Rule 11 procedures and the plea agreement. The "sentence (was) imposed in an illegal manner;" it was not an "illegal sentence." 7 It could therefore be corrected within the time limits expressed in Rule 35. The prompt proceedings in this case satisfied those requirements.
Correction of a sentence imposed in an illegal manner does not violate double jeopardy even if the correction increases the punishment, 8 and the fact that Stevens had commenced serving the defective sentence is irrelevant. (United States v. Munoz-Dela Rosa (9th Cir. 1974)495 F.2d 253; cf. Bozza v. United States (1947) 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818; United States v. Mack (9th Cir. 1974) 494 F.2d 1204, 1207.) The manner in which the district court corrected the sentence was valid. Stevens and his counsel were personally present throughout the proceedings. 9 (United States v. Mack, supra at 1208; Caille v. United States (5th Cir. 1973) 487 F.2d 614.)
AFFIRMED.
1 The agreement included a reduction in the severity of offense and commitments not to prosecute a fourth bank robbery and an escape from confinement.
2 At the first hearing the following transpired:
If I am going to exercise discretion, I exercise discretion freely and voluntarily myself, not bound by any plea bargain between your attorney and the Government. Do you understand that?
3 Because there was no discrepancy between the oral sentence and the written judgment and commitment, cases involving motions to conform the written documents to the oral statement are inapposite. See, e. g., United States v. Marquez (2d Cir. 1974) 506 F.2d 620; United States v. Munoz-Dela Rosa (9th Cir. 1974) 495 F.2d 253; United States v. Hicks (9th Cir. 1972) 455 F.2d 329, 330; United States v. Mason (10th Cir. 1971) 440 F.2d 1293; Kennedy v. Reid (1957) 101 U.S.App.D.C. 400, 249 F.2d 492.
There was also no ambiguity in either the oral or written sentences, and cases involving ambiguous statements are therefore distinguishable. See, e. g., United States v. Solomon (7th Cir. 1972) 468 F.2d 848, 852; Borum v. United States (1967) 133 U.S.App.D.C. 147, 409 F.2d 433; Fitzgerald v. United States (5th Cir. 1961) 296 F.2d 37; Gilliam v. United States (1959) 106 U.S.App.D.C. 103, 269 F.2d 770.
4 Stevens was sentenced under 18 U.S.C. § 5010(c) of the Youth Corrections Act ("YCA"). On appeal he argues that a sentence in excess of six years under the YCA is invalid. This argument is frivolous because § 5010(c) authorizes a sentence for "any further period (beyond six years) that may be authorized by law for the offense or offenses of which (a defendant) stands convicted" provided that, as was done here, the court finds that the offender "may not be able to derive maximum benefit from treatment" within six years.
"Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders."
6 Rule 36, however, is also available to correct "errors in the record arising from oversight." The oversight here was committed by the court rather than by clerical personnel, and it is unclear whether a court's oversight is remediable. Compare 2 Wright, Federal Practice and Procedure Criminal (1969) § 611 with 8A Moore's Federal Practice (2d ed. 1976) P 36.02, at 36-2 . We need not resolve this issue for the action taken here fits squarely within Rule 35. (Contrast with United States v. Stapleton (9th Cir. 1974) 494 F.2d 1269 ( ).)
7 This facet distinguishes...
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