United States v. John Jingles

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2020
• Docket: 19-10368
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10368

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

v. MEMORANDUM* JOHN WESLEY JINGLES,

Defendant-Appellant.

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

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

John Wesley Jingles appeals pro se from the district court’s second amended

judgment and its order denying his motion under Federal Rule of Criminal

Procedure 35(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

In Jingles’s previous appeal, this court remanded to the district court to

* 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). correct three clerical errors in the written judgment. See United States v. Jingles,

775 Fed. Appx. 366 (9th Cir. 2019). On remand, the district court ordered the

clerk of court to enter a second amended judgment with the clerical errors

corrected and further instructed that the effective date of the second amended

judgment would be “retroactive to the date of the original sentencing.” The

corrected second amended judgment was subsequently entered. Meanwhile,

Jingles filed a Rule 35(a) motion in the district court, arguing that his sentence on

several of the counts of conviction was illegal. After the second amended

judgment was entered, the district court denied that motion as moot.

Jingles now contends that the district court erred when it made the effective

date of the second amended judgment retroactive to the date of the original

sentencing. However, the three amendments to the judgment were not substantive

changes; instead, they were expressly meant to make the record reflect what the

district court intended to do at the original sentencing. See Jingles, 775 Fed. Appx.

at 366 (stating that the amendments to the judgment were necessary to conform the

sentence to the one the district court intended to impose); see also United States v.

Kaye, 739 F.2d 488, 490 (9th Cir. 1984) (because Rule 36 is a “narrow provision

limited to correction of errors of no more than clerical significance,” a correction

made pursuant to the rule “can do no more than conform the sentence to the term

which the record indicates was intended”). As a result, the district court properly

2 19-10368 issued the second amended judgment nunc pro tunc to the original sentencing date.

See Singh v. Mukasey, 533 F.3d 1103, 1110 (9th Cir. 2008) (court may amend

order nunc pro tunc to reflect what it actually intended to do on earlier date).

In a related argument, Jingles argues that, because the second amended

judgment was a new judgment, he was permitted to challenge it under Rule 35(a)

and the district court, therefore, improperly denied his motion. As we have already

explained, however, the clerical corrections were not substantive changes to the

judgment and the district court properly entered the second amended judgment

nunc pro tunc to the original sentencing date of October 23, 2001. Thus, the

district court was without jurisdiction to consider Jingles’s Rule 35(a) motion. See

Fed. R. Crim. P. 35(a) (motion must be filed within 14 days after sentencing);

United States v. Aguilar-Reyes, 653 F.3d 1053, 1056 (9th Cir. 2011) (14-day

deadline is jurisdictional). To the extent Jingles’s Rule 35(a) motion sought relief

that had already been granted in the previous appeal, the district court was correct

that entry of the second amended judgment rendered that request moot.

AFFIRMED.

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