United States v. Ruffin , 117 F. App'x 239 ( 2004 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-4911
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    SYLVESTER RUFFIN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
    District Judge. (CR-03-17-BO)
    Submitted:   October 1, 2004                 Decided:   December 8, 2004
    Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Vacated and remanded by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
    Assistant Federal Public Defender, Raleigh, North Carolina, for
    Appellant.   Frank D. Whitney, United States Attorney, Anne M.
    Hayes, Christine Witcover Dean, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Sylvester Ruffin pled guilty to possession of a firearm
    by a felon, 
    18 U.S.C. § 922
    (g)(1) (2000), and was sentenced as an
    armed career criminal to the statutory minimum term of 180 months
    imprisonment.          
    18 U.S.C.A. § 924
    (e) (West 2000 & Supp. 2004).
    Because we find irreconcilable inconsistencies both in the oral
    sentence and the written judgment, we vacate the sentence and
    remand for resentencing.             On remand, the district court should
    clarify its prior intent and issue a corrected judgment order.*
    Ruffin’s guideline range was 180-210 months.            Before the
    sentencing hearing, the government filed a motion for a substantial
    assistance departure pursuant to U.S. Sentencing Guidelines Manual
    § 5K1.1, p.s. (2002), and 
    18 U.S.C.A. § 3553
    (e) (West Supp. 2004),
    which authorized a departure below the guideline range and below
    the mandatory minimum sentence.              At the sentencing hearing, the
    district court indicated that it would impose a sentence at the
    bottom of the guideline range, i.e., 180 months.                   The government
    then       reminded    the   court   that   it   had   filed   a   motion   for   a
    substantial           assistance     departure     and    described      Ruffin’s
    *
    Counsel for Ruffin has filed a motion seeking leave to file
    a supplemental brief addressing the effects of Blakely v.
    Washington, 
    124 S. Ct. 2531
     (2004). The motion is granted and the
    motion is deemed to provide the supplemental argument concerning
    Blakely. After consideration of this court’s decision in United
    States v. Hammoud, 
    381 F.3d 316
    , 
    2004 WL 2005622
     (4th Cir. Sept. 8,
    2004) (en banc), we find any claim made in reliance on Blakely to
    be without merit.
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    cooperation.    The court and the attorneys then had the following
    exchange:
    THE COURT:   Why don’t you do a Rule 35 [motion] with him?
    [AUSA] MOORE:   It is a 5K and Rule –
    THE COURT: Well, I mean, why don’t you let him perform
    and then be – have his sentence modified. Are you going
    to bring him back again or not?
    [AUSA] MOORE:   I am not sure if he is going to be brought
    back or not.
    MS. GRAVES: I was under the impression that it was not
    very likely that he would be brought back, but under the
    current policy, that he would be eligible for the 25
    years, but –
    THE COURT:   All right.   We’ll do this.
    [AUSA] MOORE:     We are     recommending   a   25   percent
    reduction, 135 months.
    THE COURT:   All right.
    MS. GRAVES: Your honor, I would ask that you consider
    the reduction from the guideline range as it would be
    without the armed career criminal, without the mandatory
    minimum. His range would be 168 to 210, and I would ask
    you to consider the reduction from the 168 rather than
    from the 180.
    THE COURT: He has had a pretty violent history here.
    All right. This will be the judgment of the court. The
    defendant is hereby confined to the custody of the U.S.
    Bureau of Prisons or its authorized representative for
    imprisonment for a term of 188 months.
    The judgment and commitment order filed on the same day
    showed that the court sentenced Ruffin to a term of 180 months
    imprisonment. The accompanying statement of reasons identified the
    guideline range determined by the district court as 180 to 210
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    months.   On the same page, two boxes were checked indicating that
    “[t]he sentence departs from the guideline range upon motion of the
    government, as a result of defendant’s substantial assistance.”
    The   sentence   of   180   months    was,    however,    the   bottom    of   the
    guideline range, not a departure below it.
    Ruffin     argues   on    appeal     that   both     the    sentencing
    transcript   and      the   written     judgment       order    have     internal
    inconsistencies that make the judgment impermissibly ambiguous.
    The government argues that the plain error standard of review
    applies because Ruffin made no objection to the sentence when it
    was pronounced or to the written judgment.               See United States v.
    Olano, 
    507 U.S. 725
    , 732-37 (1993) (stating plain error test).
    The government maintains that the 180-month sentence set
    out in the written judgment is not plainly erroneous because it is
    within the guideline range and further argues that this Court lacks
    jurisdiction to review the sentencing court’s decision not to
    depart for substantial assistance. The government asserts that the
    sentencing transcript is probably in error where it indicates that
    the orally pronounced sentence was 188 months because the notes
    taken by the government attorney at the time reflect that the court
    imposed a sentence of 180 months.            The government further asserts
    that the notation in the written judgment order showing that the
    court departed for substantial assistance is a clerical error.
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    Ruffin invokes the principle that criminal sentences must
    “reveal with fair certainty the intent of the court,” United States
    v. Daugherty, 
    269 U.S. 360
    , 361 (1926), and argues that the
    sentence imposed in his case fails this basic test.          A sentence
    that contains internal contradictions which make it subject to
    multiple interpretations is ambiguous and requires resentencing if
    the court’s intent cannot be discerned.       United States. v. Moss,
    
    614 F.2d 171
    , 174-75 (8th Cir. 1980).
    Generally, when there is a conflict between the orally
    pronounced sentence and the written judgment, the oral sentence
    controls.    Rakes v. United States, 
    309 F.2d 686
    , 687-88 (4th Cir.
    1962). Here, however, the government questions the accuracy of the
    oral     sentence   apparently   imposed   (188   months),   which   was
    inconsistent with the court’s initial stated intention to impose a
    sentence at the bottom of the guideline range (180 months).          When
    the sentence is ambiguous because of inconsistency in the oral
    pronouncement, the appellate court “will look to the written
    judgment as evidence of the sentencing court’s intent.”          United
    States v. Osborne, 
    345 F.3d 281
    , 283 n.1 (4th Cir. 2003).      However,
    the written judgment is also inconsistent because it indicates that
    the court departed below the guideline range for substantial
    assistance while the sentence imposed is within the guideline
    range.
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    Rather than leave the sentence open to question, we
    conclude that “it is in the interest of judicial economy and
    fairness to all concerned parties [to] remand for clarification of
    the sentence,” United States v. Patrick Petroleum Corp., 
    703 F.2d 94
    , 98 (5th Cir. 1982), and to permit the court to issue a new
    judgment order which is internally consistent and also consistent
    with the orally pronounced sentence.
    We therefore vacate the sentence imposed by the district
    court and remand for resentencing so that the district court may
    clarify its prior intent and issue a corrected judgment order.   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.
    VACATED AND REMANDED
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