U.S. v. Werber

• Decision Date: 29 March 1995
• Docket Number: Nos. 449,D,1199,s. 449
• Citation: 51 F.3d 342
• Parties: UNITED STATES of America, Appellant, v. Gregory David WERBER, a.k.a. Gregory Allen Larson, a.k.a. Stephen Joseph Domozick, a.k.a. Mark J. Thomas, a.k.a. Alejandro Gancedo, a.k.a. David Hammerman, and John Peter Schmidt, a.k.a. Ronald Wertheim, a.k.a. Rodney Saegrov, a.k.a. John Blaser, a.k.a. Ronald Kaminski, Defendants-Appellees. ockets 94-1162, 94-1213.
• Court: U.S. Court of Appeals — Second Circuit

Page 342

51 F.3d 342

UNITED STATES of America, Appellant, v. Gregory David WERBER, a.k.a. Gregory Allen Larson, a.k.a Stephen Joseph Domozick, a.k.a. Mark J. Thomas, a.k.a Alejandro Gancedo, a.k.a. David Hammerman, and John Peter Schmidt, a.k.a. Ronald Wertheim, a.k.a. Rodney Saegrov a.k.a. John Blaser, a.k.a. Ronald Kaminski, Defendants-Appellees.

Nos. 449, 1199, Dockets 94-1162, 94-1213.

United States Court of Appeals Second Circuit.

Argued Jan. 17, 1995.

Decided March 29, 1995.

Miguel A. Estrada, Special Asst. U.S. Atty., Washington, DC (Mary Jo White, U.S. Atty., Paul G. Gardephe, Asst. U.S. Atty., S.D. New York, of counsel), for appellant.

Georgia J. Hinde, New York City, for defendant-appellee John Peter Schmidt.

Gregory David Werber, pro se, Kenneth D. Wasserman, New York City, standby counsel.

Before: KEARSE, McLAUGHLIN, and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

The question presented is whether Rule 36 of the Federal Rules of Criminal Procedure permits a district court to amend a sentence imposed several months earlier on the ground that the court had mistakenly failed to depart downwardly under the U.S. Sentencing Guidelines. The United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge ) imposed the amended sentences on February 8, 1994, and March 15, 1994. We hold that Rule 36 ¹ authorizes a court to correct only clerical errors in the transcription of judgments, not to effectuate its unexpressed intentions at the time of sentencing. Accordingly, we remand with instructions to vacate the amended judgments and to reinstate the original judgments.

This case would not have arisen a dozen years ago, before the Sentencing Reform Act of 1984 inaugurated today's complex sentencing regime. Under the old Rule 35 of the Federal Rules of Criminal Procedure, ² district courts could correct their sentencing errors within 120 days. The new sentencing framework, however, allows district judges to correct their own sentencing errors only during a seven-day window provided by Rule 35(c). ³ These rules divert more and more sentencing issues to the Court of Appeals for resolution in the first instance, even where the sentencing court itself believes that it has misapplied the law.

At the original sentencings in this case, the district court found that it had no authority under U.S.S.G. Sec. 5G1.3 to reduce the defendants' fraud sentences by the time they had spent in federal presentence custody--to give them "guideline credit," so to speak. ⁴ The record of proceedings held many weeks later suggests that the court may have assumed that Werber and Schmidt would automatically receive credit for time already served, perhaps under 18 U.S.C. Sec. 3585. ⁵

Months later, when it became clear that the court's assumption was unfounded, the district court granted motions by both defendants to re-open their sentencing proceedings under Rule 36. Stating that it had misunderstood U.S.S.G. Sec. 5G1.3 at the original sentencings, the court downwardly departed to give the defendants "guideline credit" for the time they had spent in federal presentence detention. The United States now appeals, seeking to reinstate the original sentences imposed on Werber and Schmidt.

I. FACTS

In 1992, Werber and Schmidt were convicted on four counts of a five-count federal indictment, stemming from a complex scheme to fraudulently purchase and re-sell luxury sports cars to unwitting car dealers throughout the United States. ⁶ Because the sentencing of each defendant raises distinct issues, we discuss each separately.

A. Werber

Werber was arrested on January 30, 1990, as he tried to sell a stolen Porsche to a car dealer in Beverly Hills. He was detained by state officials until July 17, 1990, when he was transferred to federal custody.

After his 1992 conviction in federal court, Werber pled guilty to related state charges in California. His federal sentencing was postponed so that he could first be sentenced in California.

On September 1, 1993, the California court sentenced Werber to time served. Accordingly, when Werber returned to the district court in New York for sentencing on the federal offenses, his state sentence had been fully discharged. Werber argued that because both his state and federal sentences were based on the same criminal conduct, the district court had authority under Sec. 5G1.3(b) of the United States Sentencing Guidelines to deduct from Werber's federal sentence the length of his California sentence. The district judge concluded, however, that he had no such authority under Sec. 5G1.3, since that provision only permitted adjusting a sentence if the defendant faced an "undischarged term of imprisonment."

Nevertheless, to effectuate what the court perceived to be the Sentencing Commission's underlying purpose in Sec. 5G1.3--to impose "a sentence that most nearly approximates the sentence that would have been imposed had all the sentences been imposed at the same time"--the court departed downwardly pursuant to Sec. 5K2.0. ⁷ The court reasoned that the Sentencing Commission had not adequately considered the possibility that a defendant, sentenced in state court for criminal conduct related to that giving rise to his federal conviction, might already have completed his state sentence by the time of his federal sentencing. The judge departed downwardly, however, by only 168 days--the amount of time Werber spent in state custody before his transfer to federal custody. As the district judge explained months later, he assumed that the Bureau of Prisons would credit Werber's federal sentence with the additional time he had spent in federal custody. (App. at 247-48).

The district court sentenced Werber to 47 months and 12 days' imprisonment. ⁸ Judgment was entered on October 25, 1993. Werber did not appeal from that judgment.

The Bureau of Prisons subsequently determined that Werber should not receive credit against his federal sentence for the period he had spent in federal custody prior to sentencing, because that period had already been credited against his California sentence. See 18 U.S.C. Sec. 3585 (precluding double-crediting of time spent in presentence detention).

In a December 11, 1993, letter to Judge McKenna, Werber argued that the Bureau of Prisons had incorrectly treated his 47-month sentence as beginning on September 1, 1993, when his California sentence was discharged. Werber urged Judge McKenna to "correct" his written judgment under Rule 36 to reflect that his federal sentence ran concurrently with the California sentence from the day he entered federal custody--over three years before his federal sentence was imposed. Werber argued that such a sentence complied with Judge McKenna's intent to depart downwardly under U.S.S.G. Sec. 5K2.0 "to effectuate the intent" of Sec. 5G1.3. On December 28, 1993, Judge McKenna entered a "corrected judgment" ordering that Werber's sentence "be served concurrently with the remainder of the California State sentence." There was no such "remainder," however, since Werber's state sentence had already been fully discharged, so the amended judgment had no practical effect.

Because the Bureau of Prisons persisted in its determination that Werber's federal sentence began on September 1, 1993, Werber asked Judge McKenna, in a letter dated January 21, 1994, to amend the judgment a second time. The judge agreed, explaining in open court that it had been his "understanding" when he originally imposed sentence that Werber would receive credit towards his federal sentence from the day he entered federal custody. On February 8, 1994, the judge invoked Rule 36 of the Federal Rules of Criminal Procedure "to correct the sentence" imposed on October 22, 1993, and imposed a new sentence of "time served."

B. Schmidt

At the time he committed the present crimes, Schmidt had absconded from parole supervision stemming from a previous conviction. On March 30, 1990, Schmidt was finally apprehended on a parole violation warrant ⁹ as he was en route to the airport for a flight to Mexico. In 1992, Schmidt was convicted with Werber on four counts of a five-count federal indictment for his fraudulent activity since release from prison. On August 4, 1993, Judge McKenna sentenced Schmidt to 37 months' imprisonment. ¹⁰

After Schmidt was sentenced, the Parole Commission re-opened his case to impose an appropriate punishment for his parole violation. ¹¹ The Commission determined that Schmidt should serve a total of 64 months for the fraudulent conduct that led to his parole revocation. On the assumption that his 37-month fraud sentence would begin after his parole violation sentence, the Commission departed downwardly to 33 months, running from his March 1990 arrest--resulting in an aggregate sentence which, taking into account good time credits, would leave Schmidt in prison for approximately 64 months.

As with Werber, the Bureau of Prisons determined that Schmidt's presentence jail time could be credited against only one sentence: his 33-month parole sentence. See 18 U.S.C. Sec. 3585. The Bureau also concluded, as did the Parole Commission, that Schmidt's two sentences would run consecutively. On March 15, 1994, the district court re-opened Schmidt's sentencing and declared that it had always intended to credit Schmidt's presentence detention time against his 1993 fraud sentence. Invoking Rule 36 of the Federal Rules of Criminal Procedure, the court "corrected" Schmidt's judgment to specify that his 37-month fraud sentence ran concurrently with his parole sentence, and that it commenced on the date of his arrest, March 30, 1990--the effect of which would be to require Schmidt's release forthwith. ¹²

II. DISCUSSION

A. Rule 36

The main issue raised on the government's appeal is whether the district court had jurisdiction under Rule 36 of the Federal Rules of Criminal Procedure to "correct" the judgments against Werber and Schmidt...