United States v. Ricardo Brown , 547 F. App'x 150 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4485
_____________
UNITED STATES OF AMERICA
v.
RICARDO BROWN,
a/k/a Richard Anthony Brown
a/k/a Munch,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 2-10-cr-00140-001)
District Judge: Honorable Alan N. Bloch
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 24, 2013
Before: CHAGARES, VANASKIE and SHWARTZ, Circuit Judges
(Filed: December 6, 2013)
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OPINION
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VANASKIE, Circuit Judge.
Appellant Ricardo Brown pleaded guilty to armed bank robbery pursuant to a
written plea agreement that stipulated that his sentence would include a requirement that
he make restitution to his victims “in such amounts, at such times, and according to such
terms as the Court shall direct.” More than one year after sentencing, Brown moved
under Rule 36 to correct a clerical error in the judgment, claiming that the District Court
mistakenly imposed inappropriately onerous terms of restitution by directing that 50% of
all funds obtained by Brown while incarcerated be applied towards his restitution
obligation. The District Court denied the motion. Because we agree with the District
Court that no clerical error occurred, we will affirm.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
On July 21, 2010, Brown was indicted by a grand jury on five counts stemming
from an alleged armed bank robbery. On April 11, 2011, Brown pleaded guilty to Count
3, armed bank robbery, pursuant to a Rule 11(c)(1)(C) plea agreement. 1 In pertinent part,
the agreement stated:
3. [Brown] will pay mandatory restitution under the Victim-
Witness Protection Act, 18 U.S.C. §§3663, 3663A and 3664,
to the victims and/or other persons or parties authorized by
law in such amounts, at such times, and according to such
terms as the Court shall direct.
....
5. If the Court imposes a fine or restitution as part of a
sentence of incarceration, Ricardo Brown agrees to
participate in the United States Bureau of Prisons’ Inmate
1
Under Fed. R. Crim. P. 11(c)(1)(C), such an agreement “binds the court once the
court accepts the plea agreement.”
2
Financial Responsibility Program, through which 50% of his
prison salary will be applied to pay the fine or restitution.
App. 95 (emphasis added). During the plea colloquy, the government observed that,
under the plea agreement, Brown agreed that he would “participate in the BOP’s inmate
financial responsibility program, through which a portion of his prison salary will be
applied to pay the fine or restitution.” App. 37 (emphasis added).
The District Court accepted the plea agreement and sentenced Brown to 131
months and 19 days imprisonment, three years of supervised release, a special assessment
of $100, and restitution in the amount of $169,520.34. In imposing the restitution
obligation, the District Court stated that it was ordering that “50 percent of all funds
obtained by the Defendant while incarcerated shall be applied toward restitution.” App.
69 (emphasis added). No objection to this requirement was interposed during the
sentencing proceeding. Consistent with the District Court’s oral pronouncement at
sentencing, the written judgment, entered on August 18, 2011, provided that “50 percent
of all funds obtained by the defendant while incarcerated shall be applied toward
restitution.” App. 6.
On November 16, 2012, more than one year after the sentence was imposed,
Brown filed a motion to correct a clerical error in the restitution order pursuant to Rule 36
of the Federal Rules of Criminal Procedure. 2 Specifically, Brown contended that the
judgment erroneously directed that 50% of all funds obtained by him while incarcerated
2
The government argues that the plea agreement contained a waiver of appeal that
foreclosed both the Rule 36 motion itself and this appeal. In light of our disposition of
the appeal on the merits, we need not decide the applicability of the waiver provision.
3
would be applied to his restitution obligation, rather than only 50% of any salary earned
by him while in prison. The District Court denied the motion on November 27, 2012,
finding that no clerical discrepancy existed between the Court’s oral pronouncements at
sentencing and the sentence as recorded.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291. 3
The standard of review for denial of a Rule 36 motion is undecided in this Circuit
and unsettled elsewhere. See, e.g., United States v. Niemiec, 689 F.2d 688, 692 (7th Cir.
1982) (applying an “abuse of discretion” standard); United States v. Dickie, 752 F.2d
1398, 1400 (9th Cir. 1985) (applying a “clear error” standard). We will not resolve that
question here because we conclude that Brown is not entitled to relief under either
standard.
The essence of Brown’s claim is that under the terms of his plea agreement, the
District Court was obligated to impose a sentence ordering Brown to pay no more than 50
percent of his prison salary in restitution. He contends that at sentencing, the District
Court mistakenly ordered Brown to pay “50 percent of all funds obtained . . . while
3
The government contends that we should decline to exercise jurisdiction because
Brown was obligated to seek administrative relief from the Bureau of Prisons (“BOP”)
before filing his Rule 36 motion. See 42 U.S.C. § 1997e(a) (stating that “[n]o action shall
be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted”). Here, the BOP is
accurately administering the sentence as ordered. Brown seeks modification of the
underlying sentence, over which the BOP has no control.
4
incarcerated,” which in practice has resulted in what Brown considers the unjust
garnishment of funds sent by family members to Brown from outside prison. Brown
suggests that this added burden was completely unintended by the Court or the parties.
Relief under a Rule 36 motion is limited to “the correction of clerical errors in the
judgment.” United States v. Bennett, 423 F.3d 271, 277 (3d Cir. 2005). A clerical error
is “a failure to accurately record a statement or action by the court or one of the parties.”
Id. at 277–78 (citations omitted). A Rule 36 motion is not an appropriate means to
correct “substantive errors in the sentence.” Id. at 278.
Here, as the District Court observed, neither the court reporter nor the clerk made
a clerical error in recording the Court’s oral pronouncement that 50% of all funds
obtained by Brown while incarcerated shall be applied toward restitution. Nor is there
any indication that the district judge simply misspoke while reading the sentence. The
District Court was thus correct to deny Brown’s Rule 36 motion.
Brown comingles his “clerical error” argument with the somewhat different
proposition that he is entitled to relief because the District Court’s purported deviation
from the text of the Rule 11(c)(1)(C) plea agreement, whether clerical in nature or not,
was illegal as a matter of law. As noted above, this is precisely the sort of substantive
attack on a sentence that should have been raised on direct appeal and not by way of a
Rule 36 motion.
Even if the claim could be brought by way of a Rule 36 motion, we conclude that
the imposed sentence did not deviate from the written plea agreement—the sentencing
judge was entitled to set the terms of restitution precisely as he did. Specifically,
5
Paragraph 3 of the plea agreement dictated that Brown pay “mandatory restitution . . . in
such amounts, at such times, and according to such terms as the Court shall direct.” App.
95. Paragraph 5 provided further specification: “If the Court imposes a fine or restitution
. . . Ricardo Brown agrees to participate in the United States Bureau of Prisons’ Inmate
Financial Responsibility Program, through which 50% of his prison salary will be applied
to pay the fine or restitution.” Id. Paragraph 5 thus acted as a floor for the minimum
amount that Brown would pay, but did not constrain the District Court in any other way.
In light of the above, we conclude that the District Court did not commit clear
error or an abuse of discretion in its denial of Brown’s Rule 36 motion. The record
establishes that there simply is no unambiguous error in the sentence, clerical or
otherwise, to correct.
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
6