United States v. Toney , 22 F. App'x 106 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4438
EDWIN ALEXANDER TONEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-00-308)
Submitted: September 28, 2001
Decided: October 16, 2001
Before MICHAEL and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
COUNSEL
Louis C. Allen III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Benjamin H. White, Jr., United States Attorney, Steven H.
Levin, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. TONEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edwin Alexander Toney pled guilty to possession of a firearm by
a convicted felon, 18 U.S.C.A. § 922(g)(1) (West 2000), and was sen-
tenced to a term of 108 months imprisonment. Toney contends on
appeal that the district court erred by making the sentence consecutive
to the undischarged state sentence Toney was serving without consid-
ering factors set out in 18 U.S.C.A. § 3553(a) (West 2000), and the
commentary to U.S. Sentencing Guidelines Manual § 5G1.3(c), p.s.
(2000). We affirm the sentence.
Toney maintains that the district court erred in not making explicit
findings concerning the factors set out in the commentary to
§ 5G1.3(c). We disagree. We are satisfied from our review of the
record that the district court was aware of its sentencing options, of
the applicable statutes and guidelines, and was familiar with the facts
of this case. The sentencing court is not required to make specific
findings as to each of the § 3553(a) factors. United States v. Johnson,
138 F.3d 115, 119 (4th Cir. 1998); United States v. Velasquez, 136
F.3d 921, 924 (2d Cir. 1998).
However, the district court’s oral pronouncement of a consecutive
sentence on May 15, 2001, conflicts with the judgment and commit-
ment order of June 4, 2001, which states that the sentence is to run
concurrently with any other sentence Toney may be serving. Ordinar-
ily, the oral pronouncement of the sentence governs. Rakes v. United
States, 309 F.2d 686, 687-88 (4th Cir. 1962); see also United States
v. Daddino, 5 F.3d 262, 266 & n.5 (7th Cir. 1993) (collecting cases
recognizing general rule). Further, under Rule 35(c) of the Federal
Rules of Criminal Procedure, sentence is imposed when it is orally
pronounced. United States v. Layman, 116 F.3d 105, 108 (4th Cir.
1997). Rule 35(c) gives the district court seven days after imposition
of a sentence to correct any arithmetical, technical, or other clear
UNITED STATES v. TONEY 3
error. United States v. Ward, 171 F.3d 188, 191 (4th Cir. 1999).
Thereafter, the court may not alter the sentence; a delay in the entry
of judgment does not provide the court with an opportunity to change
its mind about the sentence. Layman, 116 F.3d at 108-09. The conflict
between the orally pronounced sentence and the judgment order is
thus deemed to be a clerical error which may be corrected at any time.
Fed. R. Crim. P. 36.
We therefore affirm the sentence, but remand the case to the dis-
trict court to correct the clerical error in the judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED AND REMANDED