United States v. Michael Fortino ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3476
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Arkansas.
*
Michael Fortino, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 15, 2008
Filed: June 13, 2008
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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
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PER CURIAM.
Michael Fortino pleaded guilty to knowingly transporting child pornography
in violation of 18 U.S.C. §§ 2252 and 2256. On October 2, 2007, he was sentenced
to 135 months' imprisonment and twenty years of supervised release, which was at the
low end of his advisory guideline range. The next day, counsel for the government
learned that Fortino had fabricated letters of support and submitted them to the district
court1 at sentencing. The government investigated further, and found that Fortino had
submitted false documents at sentencing, including a letter of support purporting to
be from the parent of one of his victims. Accordingly, the government filed a motion
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
to vacate the sentence three days after Fortino's sentence had been pronounced. On
October 9, 2007, the district court held an evidentiary hearing to investigate the
veracity of the government's fraud allegations. On October 10, the district court
granted the government's motion to vacate the sentence pursuant to Federal Rule of
Criminal Procedure 35(a). On October 12, the district court conducted a re-sentencing
hearing. At the close of that hearing, the district court sentenced Fortino to 240
months' imprisonment, the statutory maximum, and supervised release for the
remainder of his life.
Pursuant to Rule 35(a), the court may "correct a sentence that resulted from . . .
clear error" within seven days after sentencing. The requirements of Rule 35 are
satisfied in this case. The sentence was corrected within seven days,2 and the original
sentence resulted from clear error occasioned by Fortino's fraud. Fortino argues that
the error was not "clear" because the district court held an evidentiary hearing before
vacating the sentence and conducting a new sentencing hearing. This argument is
disingenuous, especially considering that Fortino's conduct caused the problem in this
case. The district court acted prudently by inquiring into the veracity of the
government's allegations, rather than simply vacating the sentence upon the
government's motion. If fraud on the court is not the kind of clear error contemplated
by Rule 35, we cannot think of one that is. E.g., United States v. Sadler, 234 F.3d
368, 373-74 (8th Cir. 2000) (discussing Rule 35's clear error component and noting
that it is the type of error "which would almost certainly be remanded to the district
court for further action"). We affirm the district court.
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2
Pursuant to Federal Rule of Criminal Procedure 45, when computing time
periods specified in the rules, we exclude intermediate Saturdays, Sundays, and legal
holidays when the period computed is less than eleven days. Accordingly, the
intermediate Saturday, Sunday, and Monday, which was Columbus Day, are excluded
between October 3 and October 12, and the district court corrected the sentence on the
seventh day after sentencing.
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