United States v. Cole , 241 F. App'x 216 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2007
Charles R. Fulbruge III
Clerk
No. 06-10111
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY LYNN COLE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-27
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Ricky Lynn Cole appeals the sentence imposed following his
jury trial conviction on 107 counts of interstate transportation
of child pornography, distribution of child obscenity,
transportation of obscene matter, and aiding and abetting. Cole
argues, for the first time on appeal, that the district court
violated the Double Jeopardy Clause and sentenced him in excess
of the 20-year statutory maximum on Count 98 by sentencing him to
two 240-month sentences on that count, one of which included 125
months to run consecutively to the other terms of imprisonment
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-10111
-2-
imposed. The Government concedes error and proposes that the
judgment be reformed to reflect a single 240-month sentence on
Count 98, 125 months to run consecutively to the sentences
imposed on the remaining counts.
“Criminal sentences must ‘reveal with fair certainty the
intent of the court to exclude any serious misapprehensions by
those who must execute them.’” United States v. Garza, 448 F.3d
294, 302 (5th Cir. 2006) (quoting United States v. Daugherty, 269
U.S. 360, 363 (1926)). Sentences which are ambiguous or unclear
“must be vacated and remanded for clarification in ‘the interest
of judicial economy and fairness to all concerned parties.’” Id.(quoting United States v. Patrick Petroleum Corp., 703 F.2d 94,
98 (5th Cir. 1982)). A sentence which exceeds the statutory
maximum is an illegal sentence constituting plain error. United
States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).
The sentence includes two 240-month sentences on Count 98
but imposes a total 365-month sentence. Because the sentence is
unclear and ambiguous, the sentence is vacated and the case is
remanded for clarification of the sentence. See Patrick
Petroleum Corp., 703 F.2d at 98.
Because we are vacating the sentence and remanding for
clarification of the sentence, we do not address at this time
Cole’s argument that his sentence on all counts is unreasonable.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.