USA v. Aguirre, 99-50135

• Decision Date: 03 April 2000
• Docket Number: No. 99-50135,99-50135
• Citation: 214 F.3d 1122
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MIRIAM AGUIRRE, Defendant-Appellee. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1122

214 F.3d 1122 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MIRIAM AGUIRRE, Defendant-Appellee.

No. 99-50135

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted April 3, 2000--Pasadena, California

Filed June 19, 2000

Ronald L. Cheng, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellant.

Timothy C. Lannen, Los Angeles, California for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Conseulo B. Marshall, District Judge, Presiding. D.C. No. CR-96-01032-CBM-3

Before: Procter Hug, Jr., Chief Judge, Warren J. Ferguson, Circuit Judge and Jane A. Restani, Judge, United States Court of International Trade.^*

OPINION

RESTANI, Judge:

The district court sentenced Miriam Aguirre ("Aguirre" or "defendant") to 57 months imprisonment for her participation in brokering a drug deal. The government appeals a two level downward departure in defendant's sentence granted due to the absence of a local woman's prison. The government argues that Fed. R. Crim. P. 35(c) barred the district court from altering the sentence after the oral imposition of sentence, making the two level downward departure error. We agree. We find that Rule 35(c) applies from the time of oral imposition of sentence, and that its limitations on altering the sentence therefore applied at the time the district court granted the two level departure. The government also appeals a four level departure granted on the basis of extraordinary family circumstances. We conclude that this departure was within the district court's discretion. We vacate the sentence and remand for reinstatement of the original sentence.

I. Background

In 1996, Aguirre participated in a drug transaction involving a trade of methamphetamine for cocaine. On January 31, 1997, Aguirre was indicted on two counts for conspiring with intent to distribute methamphetamine, in violation of 21 U.S.C. S 846, and for intent to distribute a controlled substance, in violation of 21 U.S.C. S 841(a)(1). Defendant pled guilty to count one on May 1, 1997.

The September 1997 pre-sentence report recommended a sentencing range of 135 to 168 months, calculated on a base offense level ("BOL") of 36, in criminal history category I, with a three point downward departure based on acceptance of responsibility, making the BOL 33. Defendant sought several adjustments to her sentence, and the Government acknowledged that Aguirre qualified for a "safety valve" adjustment under U.S.S.G. S 5C1.2. This two level reduction resulted in a sentencing range of 108 to 135 months, calculated on a BOL of 31 combined with criminal history category I.

Aguirre filed a request for a downward departure based on extraordinary family circumstances just prior to the November 23, 1998, sentencing hearing. This request was based on the death of Aguirre's common-law husband during the time of her incarceration, which left her 8 year-old son without a custodial parent. At the hearing, the district court stated it would grant a downward departure of two levels on this basis. Sentencing was continued, however, to allow the government an opportunity to address the separate issue of whether the amount of drugs involved in the transaction had been foreseeable.

Sentencing resumed on January 26, 1999. The district court did not depart downward for lack of foreseeability, but increased the downward departure for extraordinary family circumstances to four levels. This led to a sentencing range of 70 to 87 months (BOL 27), and the judge sentenced defendant to 70 months. After the district court judge stated that the sentencing hearing was concluded, defense counsel requested that the district court recommend local housing for Aguirre in southern California. The judge noted that there may not be a facility for women in southern California, but recommended that Aguirre be designated within California, and within southern California if possible, in order to allow Aguirre to be near her son.

Two days later, on January 28, 1999, the judge reopened sentencing sua sponte. The judge determined that an additional downward departure of two points was warranted on the ground that the absence of a local women's prison facility would make family visitation difficult. The government opposed reopening the sentence, stating the court did not have jurisdiction to do so pursuant to Fed. R. Crim. P. 35(c). The judge stated that the court had jurisdiction, because the sentence involved "clear error" or "technical error." The additional two level downward departure led to a sentencing range of 57 to 71 months (BOL 25), and the judge sentenced Aguirre to 57 months. The government appealed.¹.

II. Application of Fed. R. Crim. P. 35(c)

We consider de novo whether the district court had jurisdiction to resentence. United States v. BarraganMendoza, 174 F.3d 1024, 1027 (9th Cir. 1999). While district courts generally have "inherent authority" to decide motions for reconsideration and rehearing of orders in criminal proceedings, 18 U.S.C. S 3582 (1994) expressly limits the court's authority in sentencing. Id. at 1028. Section 3582 provides in relevant part:

The court may not modify a term of imprisonment once it has been imposed except that . . . (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Pro cedure[.]

18 U.S.C. S 3582(c)(1) (1994). "Rule 35(c) provides the only plausible avenue by which the district court could properly correct or modify [the] original sentence." BarraganMendoza, 174 F.3d at 1028 (quoting United States v. SotoHolguin, 163 F.3d 1217, 1220 (10th Cir. 1999)); see also United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997) ("A district court does not have inherent power to resentence defendants at any time. Its authority to do so must flow either from the court of appeals mandate under 28 U.S.C.S 2106 (1982) or from Federal Rule of Criminal Procedure 35.") (citations omitted).

Rule 35(c) of the Federal Rules of Criminal Procedure states: "The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error. " The rule does not clarify whether "imposition of sentence" refers to the time of oral pronouncement of the sentence, or the entry of written judgment. Aguirre contests the application of Rule 35(c), arguing that the sentence was not imposed on January 26, 1999, because the district court had not entered judgment, and argues that the oral pronouncement of the sentence did not constitute an "imposition of sentence."

A majority of circuits considering the question have interpreted "imposition of sentence" in Rule 35(c) as referring to the time of the oral pronouncement of the sentence. See United States v. Morrison, 204 F.3d 1091, 1093-94 (11th Cir. 2000); United States v. Gonzalez, 163 F.3d 255, 263-64 (5th Cir. 1998), reh'g denied, 1999 U.S. App. Lexis 1720 (1999); United States v. Layman, 116 F.3d 105, 108-09 (4th Cir. 1997), cert. denied, 522 U.S. 1107 (1998); United States v. Abreu-Cabrera, 64 F.3d 67, 73-74 (2d Cir. 1995); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994); but see United States v. Clay, 37 F.3d 338, 340 (7th Cir. 1994) (" `imposition of the sentence' . . . signifies the date judgment enters rather than the date sentence is orally pronounced"); United States v. Morillo, 8 F.3d 864, 869 n.8 (1st Cir. 1993) (dicta).

We have previously suggested that the phrase "imposition of sentence" is a "term of art that generally refers to the time at which a sentence is orally pronounced." United States v. Navarro-Espinosa, 30 F.3d 1169, 1170 (9th Cir. 1994) (citations omitted). We also noted, however, that the Advisory Committee's notes accompanying Rule 35(c) "indicate that the drafters intended that sentencing courts be empowered to correct clearly erroneous sentences within 7 days of the formal entry of judgment." Id. at 1170-71. This reading is based on the Advisory Committee's statement that the time for correcting errors should be "narrowed within the time for appealing the sentence to reduce the likelihood of jurisdictional questions in the event of an appeal," and on the fact that the time to appeal runs from the formal entry of judgment. Id. at 1171; see also Fed. R. App. P. 4(b). In our previous cases, it was not necessary to decide which interpretation of Rule 35(c) was correct. See Navarro-Espinosa, 30 F.3d at 1171 ("We need not resolve the Rule 35 issue in this case."). We address the issue here.

We find that sentence is imposed at the time it is orally pronounced. This interpretation is consistent with the requirement under the Sixth Amendment and Rule 43(a) of the Federal Rules of Criminal Procedure that the defendant shall be physically present at the imposition of sentence. See Fed. R. Crim. P. 43(a); Townsend, 33 F.3d at 1231. If the imposition of sentence is interpreted as occurring upon the entry of written judgment, the defendant would not be present. This interpretation is also consistent with our decisions holding that if there is a conflict between the sentence orally imposed and written judgment, the oral pronouncement, as correctly reported, controls. See United States v. Allen , 157 F.3d 661, 668 (9th Cir. 1998); United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993); United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). In this context we have long held that "[t]he only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant." See Munoz-Dela Rosa, 495 F.2d at 256. Using the time of the oral pronouncement of the sentence also promotes the goal of finality. See Abreu-Cabrera, 64 F.3d at 74 ("A contrary rule, interpreting the phrase to refer to the...