United States v. Cynthia Lozano

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2021
• Docket: 19-50285
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 19-50285, 19-50286

Plaintiff-Appellee, D.C. Nos. 3:13-cr-01354-AJB-1 3:16-cr-01332-AJB-3 v.

CYNTHIA LOZANO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted January 14, 2021** Pasadena, California

Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,*** District Judge.

Cynthia Lozano appeals the district court’s order granting the government’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Motion to Clarify Judgment Orders.1 We have jurisdiction under 28 U.S.C. § 1291

and affirm.

Lozano argues that the judgments’ omission that her two sentences were to

run consecutively is not a clerical error under Federal Rule of Criminal Procedure

36, but a judicial error under Rule 35 that had to be corrected within fourteen days

after sentencing. See Fed. R. Crim. P. 35(a).

“The 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). “A change made under Fed. R. Crim. P.

36 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).

Here, the district court did that and no more by including in the corrected

judgments that Lozano’s sentences were to be served consecutively. Although the

district judge misspoke and corrected himself several times about the individual

sentences, the record unambiguously indicates that he clarified no less than four

times that the sentences were to run consecutively or be a total of 175 months.

Lozano argues in the alternative that the imposition of consecutive sentences

resulted from an incorrect calculation of the Sentencing Guidelines. However, as

1 Because the parties are familiar with the facts, we restate only those necessary to explain our decision.

2 the government notes, Lozano voluntarily dismissed her appeal of her convictions

and sentencing in 2018. Lozano counters that the period for filing an appeal begins

anew when “a district court enters an amended judgment that revises legal rights or

obligations,” “even where the appeal concerns a different matter from that revised

by the district court.” See United States v. Doe, 374 F.3d 851, 853–54 (9th Cir.

2004).

However, as Doe makes clear, the amended judgment must “revise[] legal

rights or obligations.” Id. Further, “[i]t is the words pronounced by the judge at

sentencing, not the words reduced to writing in the judge’s Judgment/Commitment

Order, that constitute the legal sentence.” United States v. Bergmann, 836 F.2d

1220, 1221 (9th Cir. 1988). Here, the unambiguous sentences pronounced at the

sentencing hearing constitute Lozano’s legal obligations, and the corrected

judgments did not revise those obligations. The district court’s clarification of

Lozano’s judgments is AFFIRMED.