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 1139
• Parties: UNITED STATES of America, Plaintiff, v. Robert VIGIL, Defendant.
• Court: U.S. District Court — District of New Mexico

727 F.Supp.2d 1139

UNITED STATES of America, Plaintiff,

v.Robert VIGIL, Defendant.

No. CR 05-2051 JB.

United States District Court, D. New Mexico.

Feb. 3, 2010.

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, Samuel H. Bregman, Eric Loman, The Bregman Law Firm, P.C., Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Robert Vigil's oral request for the Court to clarify whether it intended to require him to pay interest on the fine that the Court imposed as a part of his sentence. Vigil made this request at a hearing on January 20, 2010. The primary issues are: (i) whether the Court has jurisdiction to resolve the motion; and (ii) whether the Court intended, when it imposed sentence upon Vigil, to require Vigil to pay interest on the fine that the Court imposed if Vigil chose to pay that fine in installments. The Court first determines that the issues raised by Vigil create a "case or controversy" under Article III of the United States Constitution. The Court further finds that, while its jurisdiction to change a sentence after it has been imposed is highly circumscribed, it does have jurisdiction to explain to a Defendant the terms of his supervised release, which include the continued payment of any fines that the Court has imposed. The Court will therefore grant Vigil's oral request and clarify that Vigil is required to pay interest on the fine that the Court imposed.

PROCEDURAL BACKGROUND

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. See Fifth 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 (stating that one convicted under this statute "shall be fined under this title or imprisoned not more than twenty years, or both"). 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-monthsimprisonment 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, neither the parties nor the Court discussed interest on any fine. 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 (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 requesting clarification of the Court's sentencing order, and, at the hearing on that motion, Vigil asked the Court to address, in addition to the issues briefed, whether the Court intended to require Vigil to pay interest on the fine that it imposed in its February 22, 2007 judgment. See Transcript of Hearing at 8:22:12:8 (taken January 20, 2010) (Court, Bregman) ("Tr.").¹ Jonathan Gerson, Assistant United States Attorney, argued that the Court did not have jurisdiction over this 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). Mr. Gerson also argued that there is no constitutional case or controversy for the Court to decide regarding whether Vigil was intended to pay interest on the fine that the Court imposed. See id. at 22:22-24:6 (Court, Gerson). He argued that the only way to make the issue ripe for adjudication is for Vigil to cease making payments on the fine and violate the provisions of his supervised release. See id.

RELEVANT LAW ON CORRECTION AND CLARIFICATION OF SENTENCES

"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 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 of the Federal Rules of Criminal Procedure 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) ("[C]ourts have reduced fines under Rule 35(b)...."); United States v. Glantz, 884 F.2d 1483, 1488 (1st Cir.1989) (holding that district court should have considered motion to modify fine as part of rule 35(b) motion to reduce sentence); United States v. Linker, 920 F.2d 1, 2 (7th Cir.1990) (stating defendant had a right to request a remission of fine under rule 35(b)). 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 correct an error in the record arising from oversight or omission." Id. at 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 id. 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." Id. 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, J.) (denying motion to reconsider sentence based on argument that incarceration prevented defendant fromearning a living, paying taxes, and supporting his children, stating that the Court lacks power to change the his sentence); United States v. Myers, 375 F.Supp.2d 1293, 1297-98 (D.N.M.2005) (Browning, J.) (denying motion to modify sentence based on serious changes in defendant's medical condition because the Court, in the exercise of its equitable powers, is not free to ignore the requirements that Congress has set forth).

The limitation on a court's ability to re-sentence a defendant extends equally to fines as it does to terms of imprisonment. Rule 35 defines "sentencing," at least for the purposes of that rule, as "the oral announcement of the sentence," Fed. R. Crim. P. 35(c), which generally includes any applicable fines. In ...