United States v. David Lee Townsend

33 F.3d 1230, 1994 U.S. App. LEXIS 23254, 1994 WL 460837

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 25, 1994
• Docket: 93-4187
• Status: Published

Opinions

PAUL J. KELLY, Jr., Circuit Judge.

The government appeals from the district court’s sua sponte reduction of David Townsend’s sentence for his conviction for being a felon in possession of a firearm, 18 U.S.C. § 922(g), twenty-one days after sentence was orally imposed. We have jurisdiction under 18 U.S.C. § 3742(b)(1) and we reverse.

Background

Pursuant to a plea agreement, Mr. Townsend was sentenced on August 13,1993, to 84 months imprisonment with three years supervised release for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In sentencing Mr. Townsend, the district court rejected Mr. Townsend’s request to depart downward from the Guidelines for lack of youthful guidance, U.S.S.G. § 5H1.12. The court reasoned that Mr. Townsend would be serving a concurrent state sentence that exceeded eighty-four months and therefore would not suffer greater punishment by the imposition of this sentence.

On September 3, 1993, before a written judgment and sentence were filed with respect to Mr. Townsend, the court scheduled a resentencing hearing on its own motion in which it resentenced him to a lesser sentence of sixty months as a result of a downward departure for the “totality of the circumstances.” The government appeals from this new sentence, arguing that under Fed. R.Crim.P. 35(e) the district court lacked jurisdiction to correct Mr. Townsend’s sentence upon the expiration of seven days from the date sentence was orally imposed.

Discussion

Fed.R.Crim.P. 35(c) provides: “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.” This appeal requires us to define what Congress meant by imposition of sentence.”

It is well established that a sentence orally imposed governs a conflicting, later-written sentence of the court. United States v. Sasser, 974 F.2d 1544, 1562 (10th Cir.1992) (citing United States v. Villano, 816 F.2d 1448, 1450 (10th Cir.1987) (en banc)). This rule is grounded in the Sixth Amendment which requires that a defendant be physically present at sentencing. Villano, 816 F.2d at 1452. When a judgment of conviction containing the sentence is officially entered of record, only members of the clerk’s office are present. See Fed.R.Crim.P. 32(b)(1), 55. This cannot be what Congress meant in Rule 35(c) by “imposition of sentence” in light of the Sixth Amendment. We hold, therefore, that sentence is imposed upon a criminal defendant, for purposes of Rule 35(c), when the court orally pronounces sentence from the bench. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir.1993) (“The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant.”).

Thus, the district court had jurisdiction to correct Mr. Townsend’s sentence for clerical or technical errors until August 20, 1993. Because the district court attempted to alter Mr. Townsend’s sentence outside this seven day period, it acted outside its jurisdiction. Accordingly, we REVERSE and REMAND for resentencing in accordance with the sentence orally imposed on August 13, 1993.