U.S. v. Thomas, 38
| Citation | 135 F.3d 873 |
| Decision Date | 10 February 1998 |
| Docket Number | D,No. 38,38 |
| Parties | UNITED STATES of America, Appellee, v. Gwendolyn THOMAS, Defendant-Appellant. ocket 96-1660. |
| Court | U.S. Court of Appeals — Second Circuit |
Douglas M. Lankler, Assistant United States Attorney for the Southern District of New York (Ira M. Feinberg, of counsel), for Appellee.
Philip L. Weinstein, The Legal Aid Society, New York City, for Defendant-Appellant.
Before: CALABRESI, CABRANES, and HEANEY, * Circuit Judges.
Gwendolyn Thomas appeals from a sentence of nine months at a community correctional facility for probation violation. She argues that her original sentence--nine months' home detention followed by three years of supervised release--imposed for wire fraud, was illegal and must be vacated. She also contends that her subsequent sentence (for violating the terms of her probation) must fall because the probationary sentence was itself imposed in an invalidly amended judgment. Both parties, albeit under slightly different theories, concur that Thomas' sentences are illegal and cannot stand. In light of this agreement, and at the parties' request, we waived oral argument. 1 The parties are correct that the original sentence was erroneous and must be vacated, along with the district court's amended judgments and the sentence for violating probation, and that the case must be remanded to the district court for resentencing on Thomas' original offense.
Appellant pled guilty to wire fraud in 1995. Her Pre-Sentence Report found the applicable sentencing range to be six to twelve months, and recommended nine months' incarceration. On December 4, 1995, Judge Baer orally sentenced her to nine months' home detention followed by three years of supervised release (in addition to a myriad of fines, restitution, and special assessments), and incorporated this sentence into a written judgment filed on December 5, 1995.
Judge Baer modified his order on December 12, 1995, to correct a clerical error in docketing numbering. He further modified his order on March 5, 1996, altering the sentence from three years of supervised release (following nine months of home detention) to three years of probation. Additionally, the court mistakenly provided that nine months of home confinement should follow her term of probation, rather than having the term of probation include the period of home detention as a special condition. A final modification on March 27, 1996, corrected the error in the March 5 judgment, and stated that the nine months' home confinement would be a condition of the three years' probation. This last sentence, imposing probation and setting its terms, is the one that appellant was accused of violating in the proceedings below.
Appellant was charged with cutting off the electronic ankle bracelet/monitoring device that she was required to wear as a condition of probation. A Probation Violation Hearing was held on October 4, 1996. At this hearing, appellant admitted to removing the bracelet. Various factors were discussed, including appellant's fear that she would lose her job for wearing the bracelet, and her inability to afford pantsuits that would conceal the bracelet. No-one addressed the infirmities of the original sentence. She was orally sentenced to nine months at a community correctional facility (a sentence that would allow her to keep her job), as well as to two years of supervised release.
As the government concedes, there are at least five illegal sentences in this case: first, the oral sentence of December 4, 1995; second, the written sentence issued on December 5, 1995; third, the modified sentence of March 5, 1996; fourth, the (final) modified sentence of March 27, 1996; and fifth, the most recent October 1996 sentence.
In its brief, the government states that home detention can never be a proper sentence in its own right. It must be either (1) a condition of a term of probation or of supervised release, see 18 U.S.C. §§ 3563(b)(19), 3583(d); or (2) a substitution for certain minimum terms of imprisonment, see U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 5C1.1. This, the government concedes, means that the original sentence was flawed. The government's position is essentially correct, and there can be no doubt that the December 4 sentence was illegal. 2
A second flaw in the original sentence was that it imposed a term of supervised release to follow a term of home confinement. It is clear that supervised release can never be imposed without an initial period of imprisonment. See 18 U.S.C. § 3583(a) () (emphasis added); U.S.S.G. § 5D1.1 () (emphasis added). We agree with the government that the plain language of § 3583(a) and U.S.S.G. § 5D1.1 compels the conclusion that supervised release presupposes a period of imprisonment. It follows that, for this reason too, the original sentence was in violation of law. 3
But that does not end matters. We must also consider whether the district court's subsequent modifications were permissible corrections. Under Federal Rules of Criminal Procedure 35(c) and 36, a district court does have limited authority to modify a sentence. Under Rule 35(c), a court may, within seven days, "correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Rule 36's provision is narrower, and allows corrections after seven days, but only for "[c]lerical mistakes ... arising from oversight or omission."
While we have no doubt that the docket misnumberings were correctable, we do not think that the alteration of the supervised release sentence to one of probation, accompanied by the changes in the timing of the home confinement term vis-a-vis the rest of the sentence, was permitted under Rule 36. As the government also concedes, the law of our circuit is clear, and the desire of Judge Baer to correct the sentence to comport with his original intentions (that were not stated at sentencing) was not enough to justify modification under Rule 36. See United States v. DeMartino, 112 F.3d 75, 79 (2d Cir.1997) () (citing United States v. Werber, 51 F.3d 342, 343, 347 (2d Cir.1995)). 4
The amended sentences were therefore "imposed in violation of law," 18 U.S.C. § 3742(e)(1), and we accordingly vacate them and remand the case to the district court, see id. at § 3742(f)(1). Additionally, because Thomas' original sentence was also illegal, we likewise vacate that sentence and remand for resentencing. See 28 U.S.C. § 2106; United States v. Burd, 86 F.3d...
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