United States v. Summerville , 236 F. App'x 871 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4242
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARLON BRADFORD SUMMERVILLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:03-cr-00462-GBL)
Submitted: May 11, 2007 Decided: June 15, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey D. Zimmerman, THE LAW OFFICE OF JEFFREY D. ZIMMERMAN,
Alexandria, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Jonathan T. Baum, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Bradford Summerville was indicted for conspiracy
to possess with intent to distribute and to distribute fifty grams
or more of cocaine base within 1000 feet of a school, in violation
of 21 U.S.C. §§ 841(a)(1), 846 and 860 (2003). On June 30, 2004,
a jury convicted Summerville, but found him guilty of conspiracy to
distribute and possess with intent to distribute less than five
grams of cocaine within 1000 feet of a school. On July 9, 2004,
Summerville moved for judgment of acquittal pursuant to Fed. R.
Crim. P. 29. The district court denied the motion during the
September 10, 2004 sentencing hearing. The court sentenced
Summerville to 110 months imprisonment, but in accordance with this
court’s decision in United States v. Hammoud, 381 F.3d 316, 353
(4th Cir. 2004) (en banc), vacated by 543 U.S. 1097 (2005),
announced that if the guidelines were invalidated, Summerville’s
alternative sentence would be eighty-four months in prison. The
court entered its judgment and order denying Summerville’s Fed. R.
Crim. P. 29 motion on September 13 and 15, 2004. The judgment
erroneously recited that the jury found the defendant guilty of
conspiracy to possess with intent to distribute fifty grams or more
of cocaine base within 1000 feet of a school, instead of five or
less grams. Summerville did not appeal his conviction or sentence.
In July 2005, Summerville filed a pro se motion in the
district court seeking the imposition of the alternative sentence
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of eighty-four months, in light of the decision in United States v.
Booker, 543 U.S. 220 (2005). On August 5, 2005, counsel for
Summerville filed a Fed. R. Crim. P. 36 motion, asking the court to
correct its judgment to reflect the jury’s finding of five grams or
less of cocaine and seeking to have the lesser alternative sentence
implemented. The district court agreed that the jury found
Summerville guilty of the lesser amount of cocaine base and stated
that it would correct the judgment, but took Summerville’s request
for the imposition of the alternative sentence under advisement.
On February 15, 2006, the court entered its order
granting Summerville’s motion to correct the clerical error in the
judgment, and denying his request for the court to impose the
lesser alternative sentence. The district court concluded it was
inappropriate to modify Summerville’s sentence because there was no
indication in the record that the court considered the 18 U.S.C.
§ 3553(a) factors in formatting its alternative sentence and
accordingly, the alternative sentence was not in compliance with
Booker or United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). Therefore, on February 14, 2006, the court granted in part
and denied in part Summerville’s Rule 36 motion. Summerville
timely appealed the February 14, 2006 order.
Under Rule 36, a district court may correct clerical
errors in the judgment or errors in the record arising from
oversight or omission. The district court correctly granted the
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Rule 36 motion as to the error regarding the drug quantity for
which Summerville was convicted. We conclude, however, that the
district court was without jurisdiction to consider that aspect of
the Rule 36 motion seeking implementation of the lesser alternative
sentence.
Summerville did not appeal his conviction or sentence,
and he may not seek to raise a Booker sentencing claim through a
Rule 36 motion. The district court does not possess the authority
to modify a sentence under Rule 36, United States v. Fraley, 988
F.2d 4 (4th Cir. 1993), nor does Booker provide a jurisdictional
vehicle to activate the lesser alternative sentence. The Hammoud
decision provided district courts with the power to announce
alternative sentences and nothing more. While such an alternative
sentence plays a role during a resentencing required by Booker,
Booker applies only to cases that were pending on appellate review
when it was decided. Because Summerville did not appeal his
original sentence, his case was not pending on direct review when
Booker was decided. Booker thus does not provide a jurisdictional
means by which to impose the lesser alternative sentence.
Implicit in the district court’s announcement of an
alternative sentence was the necessity for Summerville to file a
timely notice of appeal in order to preserve his right to contest
his sentence and to have the alternative sentence imposed. To the
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extent that Summerville now wishes to challenge his conviction and
sentence, the appeal period has long expired.
Because the district court lacked jurisdiction to
consider the merits of Summerville’s arguments pertaining to the
alternative sentence, we affirm that aspect of the district court’s
order on modified grounds to reflect its denial of the Fed. R.
Crim. P. 36 motion for lack of jurisdiction. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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