U.S. v. Vigil
| Decision Date | 03 February 2010 |
| Docket Number | No. CR 05-2051 JB,CR 05-2051 JB |
| Citation | 727 F.Supp.2d 1132 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert VIGIL, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Gregory J. Fouratt, United States Attorney, Steven C. Yarbrough, Jonathan M. Gerson, John W. Zavitz, Manny Lucero, Laura Fashing, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.
Jason Bowles, B.J. Crow, Bowles & Crow, Albuquerque, NM, and Samuel H. Bregman, Eric Loman, The Bregman Law Firm, P.C., Albuquerque, NM, for Defendant.
THIS MATTER comes before the Court on the Defendant's Motion Requesting Clarification of Sentencing Order, filed September 21, 2009 (Doc. 516). The Court held a hearing on January 20, 2010. The primary issue is whether the Court has jurisdiction to change the amount of the fine that the Court specified in Defendant Robert Vigil's sentence. The Court finds that Vigil's motion, while styled a motion for clarification, requests a substantive change to the sentence imposed and that the Court has no jurisdiction to rule on such a motion. The Court will therefore deny Vigil's motion in part and reserve ruling on the remaining issues that the motion raises.
On September 30, 2006, a jury found Vigil guilty of one count out of a twenty-four-count indictment: violation of the Hobbs Act, 18 U.S.C. §§ 1951 & 2. SeeFifth Superseding Indictment at 30-31, filed July 25, 2006 (Doc. 259); Verdict at 5, filed September 30, 2006 (Doc. 408). The statute under which Vigil was convicted included a fine as a component of the sentence. See 18 U.S.C. § 1951 (). The Presentence Investigation Report ("PSR") stated that, "[p]ursuant to 18 U.S.C. § 3612(f)(1), a defendant shall pay interest on any fine of more than $2,500, unless the fine is paid in full before the 15th day after the date of judgment." PSR ¶ 111, at 42 (disclosed December 8, 2006). No party objected to this portion of the PSR.
On January 24, 2007, the Court held a sentencing hearing, at which the Court sentenced Vigil to a term of 37-months imprisonment and a fine of $97,248.42. See Judgment in Criminal Case at 2, 6, filed February 22, 2007 (Doc. 456) ("Judgment"). At the sentencing hearing, held January 24, 2007, the Court said the following regarding the fine that it would impose on Vigil:
The Court will also order a sentence of a fine in this case. The defendant will pay a total fine of $97,248.42. I believe that the $25,000.00 at the at the low end of the guide line is appropriate, but I also believe that, given that Mr. Vigil has the resources to pay for his time and expenses in prison, that the Court will move higher into the guideline range and at that amount, given the sentence that it has imposed.
Transcript of Hearing at 219:24-220:6 (taken January 24, 2007)(Court). 1 In a Memorandum Opinion and Order regarding the sentence, the Court said, in the body of its opinion:
Both parties appealed aspects of the Court's final judgment, see Notice of Defendant Robert Vigil's Appeal, filed February 27, 2007 (Doc. 457), and the United States Court of Appeals for the Tenth Circuit affirmed the judgment on the issues that it addressed, see United States v. Vigil, 523 F.3d 1258, 1260 (10th Cir.2008), filed May 22, 2008 (Doc. 513-3). The Supreme Court of the United States denied the petition for a writ of certiorari on October 6, 2008, --- U.S. ----, 129 S.Ct. 281, 172 L.Ed.2d 149 (2008). See Letter from Elisabeth Shumaker to Judges Paul J. Kelly, Jr., Stephen H. Anderson, and Michael R. Murphy (dated October 10, 2008), filed October 10, 2008 (Doc. 515).
On September 21, 2009, Vigil moved for clarification of the Court's sentencing order, requesting clarification of two issues: (i) whether the Court intended that his sentence of imprisonment be calculated from a starting date of January 24, 2007, when he was placed on house arrest, or April 9, 2007, when Vigil was placed in a federal correctional facility, see Motion ¶¶ 4-7, at 2; and (ii) whether the Court intended for Vigil to pay a fine of $97,248.42 or to pay a fine of $25,000.00 plus $1,952.66 for each month he was heldin prison, see Motion ¶¶ 8-11, at 2-3. See Transcript of Hearing at 8:22:12:8 (taken January 20, 2010)(Court, Bregman)("Tr."). The Court addresses these issues in separate opinions because Vigil stated that the issues relating to the fine that the Court imposed on Vigil are more time-sensitive. Jonathan Gerson, Assistant United States Attorney, argued that the Court did not have jurisdiction over the fine issue because the Court lost jurisdiction at the time that Vigil appealed the Court's judgment. See Tr. at 12:12-13:7 (Gerson). Mr. Gerson insisted that Vigil's motion was one to modify or correct the sentence, rather than to merely clarify what the sentence was intended to do. See id. at 16:14-17:2 (Court, Gerson).
"A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization." United States v. Mendoza, 118 F.3d 707, 709 (10th Cir.1997). As the United States Court of Appeals for the Tenth Circuit explained:
A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so. Section 3582(c) of Title 18 of the United States Code provides three avenues through which the court may "modify a term of imprisonment once it has been imposed." A court may modify a sentence: (1) in certain circumstances "upon motion of the Director of the Bureau of Prisons"; (2) "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"; or (3) "upon motion of the defendant or the Director of the Bureau of Prisons," or on the court's own motion in cases where the applicable sentencing range "has subsequently been lowered by the Sentencing Commission."
United States v. Blackwell, 81 F.3d 945, 947-48 (10th Cir.1996) (citations and footnote omitted).2
Rule 35 authorizes the district court to reduce or correct a sentence in certain limited situations. See Fed.R.Crim.P. 35. Under rule 35(a), "[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(c).3 Under subsection (b), a court may reduce a sentence for substantial assistance in certain situations "[u]pon the government's motion." Fed.R.Crim.P. 35(b)(emphasis added). See United States v. McMillan, 106 F.3d 322, 324 (10th Cir.1997) (); United States v. Glantz, 884 F.2d 1483, 1488 (1st Cir.1989) (); United States v. Linker, 920 F.2d 1, 2 (7th Cir.1990) (). Moreover, rule 36 allows a court, at any time, to "correct a clerical error in a judgment, order, or other part of the record, or correctan error in the record arising from oversight or omission." Fed.R.Crim.P. 36.
In United States v. Blackwell, the Tenth Circuit reversed the district court's re-sentencing of a co-defendant seventy-two days after the original sentencing. See 81 F.3d at 946. In that case, the defendant, who received an initial sentence of 15-months imprisonment, moved the court for a re-sentencing, because "three days prior to his sentencing, Defendant's supplier pleaded guilty to distributing fifty-five ounces of cocaine and the United States District Court for the District of Utah sentenced her to probation." Id. The court held a re-sentencing hearing seventy-two days after the original sentencing, and, at that hearing, reduced the defendant's sentence to "three-years probation, with six-months home detention." Id. at 947. In explaining its authority to modify the defendant's sentence, the district court relied on "two alternative sources of authority ...:(1) the court's 'inherent jurisdiction' to right injustices, and (2) Fed.R.Crim.P. 35[.]" 81 F.3d at 947.
The Tenth Circuit in United States v. Blackwell rejected the district court's reliance on rule 35, rule 36, or its "inherent authority," and concluded that "the court lacked jurisdiction to resentence Defendant." United States v. Blackwell, 81 F.3d at 949. The Tenth Circuit held first that the only option under § 3582 applicable to that case was whether rule 35 granted the court authority to modify the defendant's sentence. See 81 F.3d at 948. Rule 35(a) did not apply "because the court did not correct Defendant's sentence within seven days after the original sentence was imposed, but resentenced Defendant seventy-two days later." 81 F.3d at 948 (discussing then rule 35(c)). The Tenth Circuit also held that rule 35(b) did not apply: "Because subsection (b) applies only to motions made by the government, a defendant cannot invoke Rule 35(b) and empower the court to reduce his sentence." 81 F.3d at 948. See United States v. Corral, No. CR 05-0469 JB, 2006 WL 1308237, at *3 (D.N.M. Mar. 28, 2006) (Browning,...
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