United States v. John Jingles

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 18-10107
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10107

Plaintiff-Appellee, D.C. No. 2:98-cr-00431-KJM- CMK-2 v.

JOHN WESLEY JINGLES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

John Wesley Jingles appeals pro se from the district court’s order denying

his motion to correct the amended judgment under Federal Rule of Criminal

Procedure 36. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and

remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Jingles asserts that the amended judgment contains three clerical errors and

argues that the district court erred by declining to correct them. The record

reflects, and the government concedes, that the amended judgment incorrectly lists

a conviction under 21 U.S.C. § 846 and fails to reflect that the sentencing court

waived interest on the imposed fine. The amended judgment further states that the

term of supervised release is 60 months, which we conclude is also a clerical error

because it does not accurately reflect the lower term imposed on some of the

counts of conviction. See Fed. R. Crim. P. 36; United States v. Kaye, 739 F.2d

488, 490 (9th Cir. 1984) (purpose of Rule 36 is to “conform the sentence to the

term which the record indicates was intended”). Assuming without deciding that

clerical errors in a judgment are reviewed for harmlessness, we conclude that the

government has not met its burden of showing that the clerical errors in the

amended judgment are harmless. See Fed. R. Crim. P. 52(a); United States v. Kyle,

734 F.3d 956, 962 (9th Cir. 2013) (government bears burden of showing

harmlessness). We, therefore, remand for the district court to correct the amended

judgment.1

On page two of the amended judgment, the district court is directed to delete

the reference to 21 U.S.C. § 846 and delete the words “conspiracy to,” in regard to

1 In light of this disposition, we do not reach Jingles’s argument that the district court violated the rule of mandate.

2 18-10107 count numbers 21 and 22. On page four of the amended judgment, the district

court is directed to amend the term of supervised release to reflect the terms that

the sentencing court imposed on each count of conviction during its oral

pronouncement of sentence. Finally, on page six of the amended judgment, the

district court is directed to amend the criminal monetary penalties to reflect that the

interest requirement on the $1,000,000 fine is waived.

REVERSED and REMANDED with instructions.

3 18-10107