United States v. Martin

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 30, 2024
• Docket: 23-4109
• Status: Unpublished

Opinion

Appellate Case: 23-4109 Document: 010111103090 Date Filed: 08/30/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 30, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-4109 (D.C. No. 2:11-CR-00108-HCN-DAO-1) TRAVIS BEN MARTIN, (D. Utah)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and MURPHY, Circuit Judges. _________________________________

After Travis Martin violated a condition of his supervised release, the district

court revoked that release and sentenced him to time served, with no additional

supervision to follow. In so doing, it denied Martin’s motion under Federal Rule of

Criminal Procedure 36 seeking to correct an alleged clerical error in his underlying

criminal judgment. On appeal, defense counsel filed an Anders brief and moved to

withdraw. See Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-4109 Document: 010111103090 Date Filed: 08/30/2024 Page: 2

“conscientious examination” of record, counsel finds appeal “wholly frivolous,” then

counsel may move to withdraw and contemporaneously file a “brief referring to

anything in the record that might arguably support the appeal”). Martin filed a pro se

response to the Anders brief, and the government declined to file a brief. After

reviewing the Anders brief, considering Martin’s pro se response, and conducting our

own thorough examination of the record, we conclude that Martin’s appeal is wholly

frivolous. See United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). We

therefore dismiss the appeal and grant counsel’s motion to withdraw. See Anders, 386

U.S. at 744.

Background

In 2012, Martin pleaded guilty to robbing a bank and being a felon in

possession of a firearm. At sentencing, the district court imposed ten years in prison

and three years of supervised release, stating that while on supervision, Martin must

“comply with standard conditions of supervised release.” R. vol. 1, 101. The district

court then entered a written judgment, which included a list of 14 standard conditions

of supervision. As relevant here, the last standard condition was a search condition

requiring that Martin “submit his . . . person, residence, office[,] or vehicle to [a]

search[] conducted by the probation office at a reasonable time and in a reasonable

manner based upon reasonable suspicion of contraband or evidence of a violation of a

condition of release.” Id. at 44.

In 2020, over a year into Martin’s term of supervised release, law-enforcement

officers responded to a 911 call reporting that Martin had held the caller hostage with

2 Appellate Case: 23-4109 Document: 010111103090 Date Filed: 08/30/2024 Page: 3

a machete a day earlier. The officers arrested Martin and, after two federal probation

officers arrived at the scene, performed a warrantless search of the residence with

those probation officers. The search uncovered a machete, “another bladed weapon,”

and methamphetamine. Id. at 120. Based on these events, Martin was charged in Utah

state court with aggravated kidnapping and possession of a dangerous weapon by a

restricted person. Martin moved to suppress the evidence discovered during the

search, but the state court denied his motion on the basis that the warrantless search

was justified by the search condition of Martin’s supervised release. After a bench

trial, the state court convicted Martin of both charged crimes.

Meanwhile, in federal court, Martin faced allegations that he violated his

supervised-release conditions by committing new crimes. Martin, proceeding pro se

with standby counsel, responded with a motion to suppress the evidence discovered

during the search that led to his state-court convictions. The district court denied the

motion, holding that the exclusionary rule does not apply in supervised-release-

revocation proceedings. And even if it did, the district court concluded, evidence

exclusion “would have no effect on . . . Martin’s pending revocation proceedings”

because the alleged violations were based on the two state-court convictions, which

he could not collaterally attack in a revocation proceeding. Id. at 257.

Martin next filed a motion to correct a clerical error under Federal Rule of

Criminal Procedure 36, requesting that the district court remove the search condition

from the list of standard conditions of supervision in the written judgment. In

support, Martin argued that because the district court did not orally pronounce the

3 Appellate Case: 23-4109 Document: 010111103090 Date Filed: 08/30/2024 Page: 4

search condition at the sentencing hearing, the written judgment must be amended to

conform to the oral sentence. The district court denied the motion, concluding that

there was no conflict between the two because the district court orally “imposed the

court’s standard conditions of supervised release” at the sentencing hearing and “the

District of Utah adopted [the search condition as a] standard condition in 2011.” Id.

at 315–16. The district court also denied Martin’s subsequent motion for

reconsideration, reiterating that it had “expressly stated” at sentencing that “Martin

would be required to comply with the standard conditions of supervision” even

though it “did not orally enumerate these conditions.” Id. at 362. And even if the

failure to orally enumerate the conditions was error, the district court added, it “was

not [a] mere clerical error” that could be corrected under Rule 36 because “the

written judgment accurately reflects” the district court’s intent “to impose the court’s

standard conditions of supervision.” Id.

Ultimately, Martin admitted that he violated a condition of his supervised

release by committing new crimes while on supervision. And based on that

admission, the district court revoked his supervised release and imposed a sentence

of time served, with no supervised release to follow. Martin appeals.

Analysis

In the Anders brief, defense counsel asserts that there is no nonfrivolous basis

on which to challenge either the district court’s order denying Martin’s motion to

suppress or its order denying his Rule 36 motion. In response, Martin clarifies that he

does not wish to appeal the suppression ruling. Rather, he seeks to appeal only the

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district court’s denial of his Rule 36 motion, challenging “the overall validity of [the

s]tandard [search c]ondition.” Aplt. Resp. 4.

Rule 36 provides that “[a]fter giving any notice it considers appropriate, the

court may at any time correct a clerical error in a judgment, order, or other part of the

record, or correct an error in the record arising from oversight or omission.”1 Fed. R.

Crim. P. 36. We have held that this rule authorizes a district court to amend a written

judgment to bring it into conformity with the orally pronounced sentence. United

States v. Sasser, 974 F.2d 1544, 1561–62 (10th Cir. 1992); see also United States v.

Villano, 816 F.2d 1448, 1450–51 (10th Cir. 1987) (en banc) (“It is a firmly

established and settled principle of federal criminal law that an orally pronounced

sentence controls over a [written] judgment . . . when the two conflict.”). But it “does

not give the court authority to substantively modify a [d]efendant’s sentence.” United

States v. Blackwell, 81 F.3d 945, 948–49 (10th Cir. 1996). Put simply, “Rule 36 is

narrow, applying only to uncontroversial and non[]substantive clerical errors ‘of the

sort that a clerk or amanuensis might commit, mechanical in nature.’” United States

v. Kieffer, 596 F. App’x 653, 660 (10th Cir. 2014) (quoting United States v. Penson,

1 The standard of review for decisions on Rule 36 motions is unclear. See United States v. Williams, No. 21-3157, 2022 WL 2288245, at *2 (10th Cir. June 24, 2022) (unpublished) (noting that “[w]e’ve not issued a published opinion stating the standard for review of motions for clerical correction” under Rule 36, and other circuit courts “differ on whether to apply the de novo standard, the abuse-of- discretion standard, or the clear-error standard”). Because the outcome would be the same under any standard of review, we need not decide which standard applies. See id. 5 Appellate Case: 23-4109 Document: 010111103090 Date Filed: 08/30/2024 Page: 6

526 F.3d 331, 335 (6th Cir. 2008)).2

Here, we agree with defense counsel that inclusion of the challenged search

condition in the written judgment was not a clerical error correctable by Rule 36. At

the sentencing hearing, the district court told Martin that he would be subject to

“standard conditions of supervised release.” R. vol. 1, 101. To be sure, the district

court did not specify which “standard conditions of supervised release” it adopted,

creating an ambiguity in the orally pronounced sentence. See Villano, 816 F.2d at

1453 n.6 (explaining that ambiguity in oral sentence may exist when “the extent of

the sentence cannot be ascertained from the language used”). But the ambiguity in

the oral pronouncement was “subsequently clarified by the district court’s completion

and filing of the [written judgment],” which included the challenged search condition

in the list of standard conditions of supervised release. United States v. Ngo, 556 F.

App’x 752, 754 (10th Cir. 2014); see also Villano, 816 F.2d at 1451 (holding that if

oral sentence is ambiguous, reviewing court may look to written judgment “to

determine the intended sentence”). And because the written judgment confirms the

district court’s intent to impose the challenged search condition, removal of that

condition would not correct a deviation from an unambiguous oral sentence; it would

instead amount to a substantive modification of Martin’s sentence outside the scope

of Rule 36. See Ngo, 556 F. App’x at 754 (concluding that although district court did

not mention two challenged standard conditions of supervised release at sentencing

2 We cite unpublished cases for their persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 6 Appellate Case: 23-4109 Document: 010111103090 Date Filed: 08/30/2024 Page: 7

hearing, removing such conditions from written judgment would constitute

substantive change beyond Rule 36’s reach because district court did announce

defendant would be subject to standard conditions, such that judgment merely

clarified ambiguity in oral sentence); cf. United States v. Geddes, 71 F.4th 1206,

1215–16 (10th Cir. 2023) (reversing imposition of discretionary standard conditions

of supervised release on direct appeal where district court “said nothing about

[standard] conditions” at sentencing and nothing in its language could “be construed

as ambiguous—the district court simply did not incorporate or impose any standard

conditions of supervised release” (emphasis added)). Under these circumstances, we

see no nonfrivolous argument that the district court erred in denying Martin’s Rule

36 motion.

Conclusion

Because our consideration of the briefs and our examination of the record

reveals no nonfrivolous basis for appeal, we dismiss the appeal and grant defense

counsel’s motion to withdraw. See Calderon, 428 F.3d at 930.

Entered for the Court

Nancy L. Moritz Circuit Judge