United States v. Williams

Opinion

Appellate Case: 21-3157 Document: 010110701210 Date Filed: 06/24/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 24, 2022 _______________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 21-3157 v. (D.C. No. 2:14-CR-20030-KHV-3) (D. Kan.) ALLEN J. WILLIAMS,

Defendant - Appellant. _______________________________________

ORDER AND JUDGMENT * ________________________________________

Before BACHARACH, BALDOCK, and EID, Circuit Judges. ________________________________________

This appeal involves interpretation of a district court’s explanation

of the length of supervised release. The written judgment itself is clear.

But the defendant argues that this written judgment conflicts with the

district court’s oral pronouncement at sentencing.

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-3157 Document: 010110701210 Date Filed: 06/24/2022 Page: 2

If the defendant is right, the oral pronouncement would control. So

the defendant moved for the district court to make a clerical correction to

the written judgment. The district court denied the motion for clerical

correction, viewing the oral pronouncement as ambiguous (rather than

inconsistent with the written judgment). We agree with the district court.

1. The court was orally clear on its intent, but was unclear on how to carry out that intent.

The confusion stemmed from dual proceedings against the defendant

in the Western District of Missouri and the District of Kansas. The

Western District of Missouri imposed a prison sentence and supervised

release for three years.

The defendant was then sentenced in the District of Kansas. That

sentence included prison terms and supervised release for two counts. The

court explained that it intended for the defendant to serve a total of six

years on supervised release, including the three years imposed in the

Western District of Missouri.

At the sentencing, the court in the District of Kansas discussed two

ways of getting to a total of six years. The court first proposed a term

that’d run consecutively to the term imposed in the Western District of

Missouri. But the court then changed the breakdown, stating that the new

term of supervised release would run concurrently with the Western

District of Missouri’s three-year term. Both ways, the defendant would

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serve a total of six years on supervised release, including the terms

imposed in the two courts. At the end of the proceeding, however, the court

suggested that it could adhere to the initial proposal. That suggestion

sparked confusion.

The court’s initial proposal was to make the supervised release terms

in Kansas consecutive to the term imposed in the Western District of

Missouri. Because the Western District of Missouri had imposed a three-

year term of supervised release, the District of Kansas would impose a

total of three years’ supervised release. So the district court initially

proposed three years’ supervised release on each of the two counts (to run

concurrently with each other and consecutively to the three-year term

imposed in the Western District of Missouri). This way, the defendant

would serve three years of supervised release in the Western District of

Missouri and three years of supervised release in the District of Kansas.

In imposing the sentence, however, the district court decided to

change the breakdown for the six years of supervised release. This time,

the court said that it would run the supervised release term concurrently,

rather than consecutively, with the supervised release term imposed in the

Western District of Missouri. Because the defendant was already serving

three years’ supervised release in the Western District of Missouri, the

court would need to impose a total of three more years. The court would

get to the three-year total by imposing two terms of supervised release,

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with both running concurrently with the Western District of Missouri’s

three-year term. For the first count, the term would be five years; for the

second count, the term would be one year. So after completing the Western

District of Missouri’s three-year term, the defendant would again serve

three more years in the District of Kansas.

At the end of the sentencing, however, the court broached the

possibility of returning to the initial proposal of a three-year term that runs

consecutively to the Western District of Missouri’s three-year term: “[O]r

we could say three years on each count, but neither one of them starts to

run until he’s off oof supervision in the Western District of Missouri.” 1

The court reiterated, though, that its intent was for the defendant to serve a

total of six years, including the Western District of Missouri’s three-year

term. 2

2. The written judgment implemented the second way of getting to a six-year total.

Despite broaching the possibility of returning to the initial proposal,

the district court issued a written judgment implementing the second way

to obtain a six-year total of supervised release:

Upon release from imprisonment, the defendant shall be on supervised release for a term of five years on Count 1, and one year on Count 2, to be served consecutively to Count 1. This term

1 R. vol. 4, at 22. 2 Id.

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of supervised release shall run concurrently with the supervised release term previously imposed in the Western District of Missouri. 3 So for the first count, the defendant received a five-year term of supervised

release. For the second count, the defendant received another one-year

term of supervised release, to run consecutively to the five-year term on

the first count. The total (six years) in the District of Kansas would run

concurrently with the three-year term in the Western District of Missouri.

The result was a total of six years of supervised release in the two

districts.

3. The defendant invoked the power to make clerical corrections to the judgment.

The defendant sought clerical correction under Fed. R. Crim. P. 36,

which allows the court to correct clerical errors in the judgment. 4 Invoking

this rule, the defendant argued that the written judgment had improperly

changed the terms of the sentence. The district court denied the motion,

reasoning that

 the oral explanation had been ambiguous and

 the written judgment accurately reflected the sentence imposed.

3 Id. vol. 1, at 66. 4 United States v. Blackwell, 81 F.3d 945, 948–49 (10th Cir. 1996).

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4. We need not decide the standard of review.

The threshold issue is the standard of review. We’ve not issued a

published opinion stating the standard for review of motions for clerical

correction. Other circuits differ on whether to apply the de novo standard,

the abuse-of-discretion standard, or the clear-error standard. 5 We need not

decide the applicable standard of review because we’d affirm under any of

these standards.

5. An ambiguity existed in the oral pronouncement.

When orally explaining the sentence, the court made it clear that it

was intending to require six years of supervised release between the two

5 Compare United States v. Vanderhorst, 927 F.3d 824, 826 (4th Cir. 2019) (legal issue reviewed de novo), United States v. Mackay, 757 F.3d 195, 197 (5th Cir. 2014) (de novo review), United States v. Robinson, 368 F.3d 653, 655–56 (6th Cir. 2004) (reviewing de novo the district court’s legal conclusion that a clerical error existed), United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (conducting de novo review of the district court’s application of Rule 36 to correct clerical errors in its judgment), and United States v. Burd, 86 F.3d 285, 287 (2d Cir. 1996) (reviewing de novo the district court’s application of Rule 36 to undisputed facts), with United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (applying the clear-error standard to determine whether the clerk had erred in describing the sentence and applying de novo review over legal questions), with United States v. Niemiec, 689 F.2d 688, 692 (7th Cir. 1982) (applying the abuse-of-discretion standard when reviewing the denial of a motion for clerical correction), and United States v. Martinez, 613 F.2d 473, 482 (3d Cir. 1980) (stating that the district court had discretion under Rule 36 to correct the clerk’s clerical error in cancelling a bond).

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districts. 6 To reach the six-year total, however, the court voiced two

different sets of terms. The first set involved a term of supervised release

that would run consecutively to the term already imposed in the Western

District of Missouri; the second set involved a term of supervised release

that would run concurrently with the Western District of Missouri’s term.

Though the two sets created the same duration of supervised release (six

years), the breakdown differed in the district court’s two articulations at

the sentencing.

Though the defendant denies ambiguity, he relies solely on the

court’s initial proposal. This proposal was clear, but the court later

changed the breakdown of the supervised release terms in imposing his

sentence:

The Court: Earlier I said three years, but I think the way we’ll do it is to say six years. The first five years of that will run concurrently with the supervised release that the western District of Missouri has imposed and the -- and there will be one additional year that will be served concurrently to that process. So the overall term of supervised release – wait.

[Defense counsel]: Consecutively you meant on that last year.

The Court: Yes or we could say three years on each count, but neither one of them starts to run until he’s off of supervision in the Western District of Missouri. But the intent is that he would be on supervised release for six years between us and them. 7

6 R. vol. 4, at 22 (“But the intent is that he would be on supervised release for six years between us and them.”). 7 Id.

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From this exchange, the district court unambiguously intended to require

six years of supervised release between the terms in the Western District of

Missouri and the District of Kansas.

After making this unambiguous change, however, the court broached

the possibility of returning to the initial proposal, stating that “we could

say” that there would be two terms of three years. 8 This remark created

ambiguity on whether the terms would be 3 years/3 years or 5 years/1 year.

Given that ambiguity, the court could use the written judgment to clarify

the intended sentence. 9

6. The defendant hasn’t preserved a challenge to the validity of the supervised release terms.

The defendant argues that the sentencing guidelines prevented the

District of Kansas from imposing consecutive five-year and one-year terms

of supervised release on the two Kansas counts. The government agrees

that the court erred in making the supervised release terms consecutive for

the two counts. But the error does not entitle the defendant to relief for

two reasons: (1) He forfeited the argument by omitting it in the motion

8 Id. 9 United States v. Villano, 816 F.2d 1448, 1450–51 (10th Cir. 1987).

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filed in district court, 10 and (2) he does not argue that the illegality would

have removed the ambiguity. 11

* * *

The district court’s oral pronouncement contained an ambiguity by

discussing two different ways of sentencing the defendant to supervised

release. Given this ambiguity, the court used the written judgment to

clarify the terms. This use of the written judgment was appropriate, so we

affirm.

Entered for the Court

Robert E. Bacharach Circuit Judge

10 The defendant does not argue that the district court committed plain error in denying his motion for clerical correction. So we do not consider the possibility of a plain error. See United States v. Garcia, 936 F.3d 1128, 1131 (10th Cir. 2018) (stating that arguments not raised before the district court are forfeited and that the failure to urge plain error would waive the issue). 11 The government argues that the defendant cannot obtain relief under other provisions, including 28 U.S.C. § 2255, 18 U.S.C. § 3582(c)(1)(B), or Fed. R. Crim. P. 35. We need not decide whether the defendant has other available remedies because he hasn’t asserted them here. We are reviewing a motion for clerical correction of the judgment, not a motion under § 2255, § 3582(c)(1)(B), or Rule 35.