United States v. Esminger ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4916
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANKLIN HOWARD ENSMINGER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-05-27)
Submitted: June 30, 2006 Decided: August 2, 2006
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Don Willey, Jefferson, North Carolina, for Appellant. Gretchen C.
F. Shappert, United States Attorney, Charlotte, North Carolina, Amy
E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Franklin Howard Ensminger was convicted pursuant to a
guilty plea for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). At sentencing, the
court imposed an eighty-three-month sentence. Ensminger appeals
his sentence, arguing that the district court erred in determining
that his prior North Carolina state conviction for involuntary
manslaughter constituted a “crime of violence” under U.S.
Sentencing Guidelines Manual §§ 2K2.1(a)(2), 4B1.2 (2004).
Whether a particular state offense is a federal crime of
violence is a question of law reviewed de novo. United States v.
Pierce, 278 F.3d 282, 286 (4th Cir. 2002). In United States v.
Payton, 28 F.3d 17 (1994), this court considered whether the
defendant’s South Carolina conviction for involuntary manslaughter
constituted a “crime of violence” for purposes of sentencing
enhancement under USSG §§ 2K2.1(a)(2), 4B1.2. The court noted that
commentary to the USSG § 4B1.2 clearly listed manslaughter as a
“crime of violence.” Payton, 28 F.3d at 19. The court concluded
that, although the commentary does not differentiate between
involuntary and voluntary manslaughter, it includes both. Id.Accordingly, Ensminger’s argument is foreclosed by Payton.
We vacate Ensminger’s sentence and remand to the district
court, however, on a different basis. At sentencing, based on
Ensminger’s offense level and criminal history category, the
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Guidelines range was seventy-seven months to ninety-six months of
imprisonment. The transcript of the sentencing proceedings
reflects that the district court imposed a sentence of eighty-three
months of imprisonment. The written judgment, however, states that
Ensminger was sentenced to seventy-seven months of imprisonment.
“[T]he sentences to be served . . . are those pronounced in the
defendant’s presence in open court and not those set out in the
written judgments of the court.” Rakes v. United States, 309 F.2d
686, 687 (4th Cir. 1962). Thus, the written judgment in the
instant case should reflect the district court’s oral pronouncement
at sentencing. The remedy is to vacate the judgment and remand to
the district court for the purpose of correcting the written
judgment to conform to the oral sentence. See id. at 688; see also
United States v. Morse, 344 F.2d 27, 30, 31 n.1 (4th Cir. 1965)
(the court “should carry out the true intention of the sentencing
judge as this may be gathered from what he said at the time of
sentencing”); Fed. R. Crim. P. 36 (“After 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.”).
Accordingly, we vacate the district court’s judgment and
remand for the limited purpose of having the district court reenter
a written judgment conforming to the oral pronouncement at
sentencing. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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