Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.James BARNARD, Defendant-Appellant.

No. 89-30039.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1990.Decided Feb. 6, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


MEMORANDUM* 

James Francis Barnard, Jr. appeals the district court's denial of his Rule 36 motion to correct alleged errors in its written sentencing order. We have jurisdiction under 18 U.S.C. § 1291.

BACKGROUND

James Francis Barnard, Jr. was convicted of various drug related offenses and sentenced on those convictions on two occasions, hereafter Barnard I and Barnard II. Barnard was sentenced to twenty years in prison for Barnard I, five years in prison for Barnard II, and the sentences were to run consecutively, for a total of twenty-five years.1 

Although the government had estimated that Barnard would serve about ten years, the Parole Commission set his earliest release date at fifteen years. Barnard had served about two-and-a-half years of his sentence at the time of the hearing on his Rule 35 motion to reduce his sentence.

Barnard cooperated in the prosecution of his former associates. Both the government and the judge agreed that his sentence should be reduced. At the Rule 35 hearing, the judge stated:

I believe I agree with the Government, this sentence should be reduced. It is my present thinking that the remaining time to be served, which is now twelve years, should be half, at least six. How to go about that in general as to which count to pick and that sort of thing I think should be better left to tailoring of the sentence by the Government and by the Parole and Probation Division, Mr. Gilbert. So I will consider an order prepared by the Government with consultation of the Parole and Probation which results in a reduction of sentence so that Mr. Barnard who has served two-and-a-half years would serve six more. I regard that as a heavy sentence, but I also take into consideration that it was my feeling as well as the Government that 120 months would have been served, that is, ten years. This serves as a modest reduction of a ten year sentence to a total of eight-and-a-half to nine years rather than the ten which was, in essence, the sentence imposed originally.

(emphasis added).

The written order reduced the sentence in Barnard I from twenty years to fourteen years, to run concurrently with the Barnard II sentence. These changes reduced the total sentence from twenty-five years to fourteen years.

Barnard then filed a Rule 36 motion to correct a clerical error, because the written sentence of fourteen years did not conform to the eight-and-a-half to nine year sentence that he thought had been orally pronounced. The district court denied the motion and Barnard appeals.

ANALYSIS

We review the district court's factual determinations in a Rule 36 motion under the clearly erroneous standard. United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988); United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985). We review de novo any questions of law in a Rule 36 proceeding. United States v. Bergmann, 836 F.2d at 1221.

Barnard argues that the written fourteen year sentence differs from the oral pronouncement of a reduction to "eight-and-a-half to nine" years, and that the oral pronouncement must be given effect to prevent the peril of double jeopardy.

When a sentence is originally imposed, " [t]he only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant." United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974); United States v. Bergmann, 836 F.2d 1220 (9th Cir. 1988); see generally U.S. Const. amend. V, cl. 2 (protection against double jeopardy); Fed. R. Crim. P. 43(a) (requiring the defendant's presence at imposition of sentence); Fed. R. Crim. P. 32(a) (the defendant may speak on his own behalf at imposition of sentence). Even if the judge misspoke or later changed his mind, an unambiguous oral pronouncement of sentence controls over any conflicting written order of sentence. United States v. Bergmann, 836 F.2d at 1222-23; United States v. Munoz-Dela Rosa, 495 F.2d at 256.

We need not address whether an oral pronouncement of a sentence reduction takes precedence over a conflicting written order, because we find no conflict here. A Rule 36 motion can do no more than conform the sentence to the term which the record indicates was intended. United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984) (A judge may not add years to a sentence as a "judicial afterthought."). Our review of the record reveals no conflict between what the district judge said at the hearing and the final written order.

The record reflects that at the hearing the district judge decided to reduce the time Barnard would spend in prison, but had not decided how to obtain that result. Even assuming arguendo, that he modified the sentence at that hearing, he did not state that Barnard's prison sentence would be reduced to eight-and-a-half to nine years. Rather he mentioned those numbers in relation to "the ten which was, in essence, imposed originally." Barnard had no imposed sentence of ten years. The judge's remarks must relate to the ten years that the government originally thought he would spend in custody. The judge also stated that "the remaining time to be served, which is now twelve years, should be half, at least six." Barnard had twelve years remaining of the fifteen the Parole Commission determined he must serve before becoming eligible for parole, but had twenty-two years remaining of his full sentence. Thus, the district judge's remarks clearly refer to the amount of time Barnard would likely spend in custody, not the full term of his sentence. Barnard now becomes eligible for parole in 1993. If released at that time, he will have spent the "eight-and-a-half to nine years" in custody contemplated by the district judge.

Also, the district judge stated in his opinion denying Rule 36 relief:

My statement referred to ... the time the defendant was to actually serve in custody.... I did not pronounce a final modified sentence at that hearing. I asked the government attorney and probation officer to prepare an order ... that would result in the defendant serving 6 years less in prison. A reduction from 20 to 14 years would cut defendant's remaining prison time from 12 years to 6 years if concurrent to the 5 year sentence earlier imposed ... [T]he written order and oral pronouncement are consistent because they both contemplate a reduction in jail time of 6 years.

"Because the sentencing court is in a unique position to know the actual terms of the sentence it intended to impose, some measure of deference should be accorded a sentencing court's personal observations in this matter." United States v. Dickie, 752 F.2d at 1400.

We conclude that the district court did not err.2  AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Barnard was also sentenced to special parole terms to follow each of the prison term sentences imposed. The special parole terms are not the subject of this appeal and have been omitted from the recitation of the facts

 2

At oral argument, counsel for appellant stated that appellant wished to raise an additional issue concerning the separation of powers. That issue was not presented to the district court and accordingly is not properly before us. We decline to consider it