United States v. Williams ( 2022 )

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
2
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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,
3
Appellate Case: 21-3157 Document: 010110701210 Date Filed: 06/24/2022 Page: 4
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.
4
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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).
5
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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).
6
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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.7
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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).
8
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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.
9