United States v. Arnold Prado ( 1996 )

___________
No. 93-2789
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Arnold Prado, *
* (UNPUBLISHED)
Appellant. *
___________
Submitted: March 15, 1995
Filed: April 11, 1996
___________
Before MAGILL, JOHN R. GIBSON, and BEAM, Circuit Judges.
___________
PER CURIAM.
Arnold Prado, a federal prisoner, appeals from the district court's1
order granting in part and denying in part his motion under Fed. R. Crim.
P. 36 to correct his judgment and commitment order.
Prado pleaded guilty to an information charging him with two counts
of aiding and abetting interstate travel involving the distribution of a
controlled substance, in violation of 18 U.S.C. §§ 1952 and 2. Prado
acknowledged in his plea agreement that each count carried a maximum five-
year prison sentence, and the parties
1
The Honorable Diana E. Murphy, then Chief Judge for the
United States District Court for the District of Minnesota, now
United States Circuit Judge.
agreed that "the sentence imposed by the Court will be 120 months." The
contemplated Guidelines range was 97 to 121 months.
The presentence report (PSR) calculated a Guidelines sentencing range
of 135 to 168 months. In written objections, Prado disagreed with certain
facts in the PSR, and challenged the PSR's conclusion that he entered the
United States illegally.
At the November 1991 sentencing hearing, the sentencing court2
acknowledged the existence of a "minor dispute" between the parties
regarding the PSR. The court stated that it subscribed to the probation
officer's version "of the controversies," and that it was adopting the
probation officer's findings "from which it appears that the total Offense
Level is 34, Criminal History Score of II, . . . which provides for an
imprisonment range of 135 to 168 months. 120 months are provided by
statute." The court also observed that the plea agreement contained a cap
of 120 months on both counts of the information to which Prado had pleaded
guilty. The court sentenced Prado to two consecutive 60-month prison
sentences and three years of supervised release, stating that it found "no
reason to depart from the guidelines except to accept the recommendation
and agreement of the government to plead to an information, rather than the
indictment."
The following statements--each indicated by a marked box--were
contained in the written judgment and commitment: (1) "[t]he court adopts
the factual findings and guideline application in the presentence report,"
and (2) "[t]he sentence departs from the guideline range . . . upon motion
of the government, as a result of defendant's substantial assistance."
Prado did not appeal his sentence.
2
The Honorable Edward J. Devitt, late a United States District
Judge for the District of Minnesota.
-2-
In June 1993, Prado filed a motion in the district court pursuant to
Rule 36 to correct two errors in his judgment and commitment order. First,
he argued that the clerk who prepared the judgment erroneously indicated
that the court had adopted the PSR's factual findings and Guidelines
application, because the court never made any factual findings. Second,
he argued that the clerk wrongly indicated the reason why the court
departed from the Guidelines range.
The government responded that the sentencing court had orally adopted
the probation officer's findings, but agreed with Prado, however, that the
sentencing court did not depart from the Guidelines for Prado's substantial
assistance. In his reply, Prado argued the government was "implying" that
the sentencing court complied with Fed. R. Crim. P. 32. Prado maintained
that the court had violated Rule 32, and stated that he intended to raise
the issue in a motion under 28 U.S.C. § 2255. He contended that the Rule
32 issue should not be decided in a Rule 36 proceeding.
The district court denied the motion with respect to the adoption of
the PSR findings and guideline application. As to the second alleged
error, the district court agreed with Prado that the judgment incorrectly
indicated the sentencing court departed for substantial assistance. The
district court found that the sentencing court instead had sentenced Prado
as agreed by the parties and as provided for by statute. The court adopted
the government's suggestion to correct the document to reflect that the
sentencing court imposed a sentence below the Guidelines range because the
range exceeded the statutory maximum penalty. The district court rejected
Prado's argument that the correction inaccurately reflected the sentencing
court's pronouncement and improperly engaged the district court in
determining his sentence. The court also rejected Prado's argument that
correcting the errors would invalidate the judgment. The judgment was
subsequently corrected to read: "[t]he sentence is below the guideline
range
-3-
and the sentence is imposed for the following reason(s): the guideline
range exceeded the statutory maximum sentence."
Prado argues on appeal that the district court did not confine itself
to correcting clerical errors, but instead altered or "determined" his
sentence in violation of his due process rights, and thus invalidated the
judgment. He also complains that the language used to correct the judgment
is inaccurate, and the judgment wrongly indicates that the sentencing court
made the factual findings required by Rule 32. He maintains that the
record reveals no hearing on the "controverted inaccuracies," and the
sentencing court further violated Rule 32 because it failed to append a
copy of its findings to the PSR and to provide him with a copy of the PSR
at least ten days before sentencing.
The government contends that the district court properly corrected
the judgment. The government also discusses the merits of the alleged Rule
32 violations, arguing that the sentencing court made the factual findings
as required, that any error was harmless, and that Prado is precluded from
arguing he was deprived of the opportunity to review the PSR because he did
not raise the issue below.
"Rule 36 authorizes a court to correct a clerical error in a judgment
at any time" although it "does not authorize a district court to modify a
sentence at any time." United States v. Tramp, 30 F.3d 1035, 1037 (8th
Cir. 1994) (emphasis in original). "The oral pronouncement by the
sentencing court is the judgment of the court." Id.
The district court did not err when it concluded that the sentencing
court adopted the PSR's factual findings and Guidelines application.
Appellant filed written objections to the presentence report and the
probation officer prepared an addendum to the presentence report which
rejected each of Prado's objections. At
-4-
the time of sentencing, the district court referred to the probation report
which stated as follows:
There is some minor dispute between the parties.
The Court has read them all over and subscribes to the
probation officer's version of the controversies and adopts the
probation officer's findings, from which it appears that the
Total Offense Level is 32, Criminal History Score of II, Roman
number two, which provides for an imprisonment range of 135 to
168 months. 120 months are provided by statute.
Thus, the statement in the judgment was accurate and in accord with the
district judge's oral statements at the time of sentencing. The district
court did not err in refusing to make this correction.
With respect to Prado's argument that the district court violated
Rule 32, the district court may have erred, as Prado suggests, in failing
to make a specific determination as to each matter controverted. See
United States v. Beaty, 9 F.3d 686 (8th Cir. 1993), and Rule 32(c)(3)(D),
Fed. R. Crim. P. On the other hand, the objections made do not go to the
sentencing determination. Three objections related to whether another was
a member of the conspiracy and two related to whether Prado or a co-
conspirator performed an overt act. These objections have no effect on the
computation of the guidelines. In another objection Prado specifically
stated that he had not provided any information to officials, and this
supports the probation officer's recommendation of no adjustment for
acceptance of responsibility. The objection concerning deportation was not
relevant to any calculation of the guideline sentence. None of these
objections were important or material to the determination of the guideline
range, and the sentencing court's failure to specifically rule these issues
had no bearing on the sentencing. See § 6A1.3, U.S.S.G. While we believe
that there was no error in this respect, if there was it was harmless in
that it did not affect the sentence
-5-
imposed. See Williams v. United States, 112 S. Ct. 1112, 1120 (1992).
We affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-