United States v. Jonathan McGinley , 450 F. App'x 642 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30055
Plaintiff - Appellee, D.C. No. 6:91-cr-60012-HO-1
v. MEMORANDUM*
JONATHAN MICHAEL MCGINLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted December 8, 2010
Seattle, Washington
Before: O’SCANNLAIN and PAEZ, Circuit Judges, and KENDALL**, District Judge.
Plaintiff Jonathan McGinley (“McGinley”) appeals the district court’s written
imposition of a 46-month term of supervised release. We review de novo whether a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Virginia M. Kendall, United States District Judge for the
Northern District of Illinois, sitting by designation.
district court had jurisdiction to correct an orally imposed sentence under Federal Rule
of Criminal Procedure 35 and a district court’s application of the supervised release
statute. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and
we affirm.1
1. McGinley first argues that the district court’s February 25, 2010 written
clarification of its February 16, 2010 oral sentence was improper.
During the February 16 sentencing hearing, the district court stated that
McGinley was “at one time one of the most dangerous people I’ve dealt with in 37
years.” When the district court then pronounced the sentence, it stated that it was
varying2 upwards pursuant to 18 U.S.C. § 3553(a) to “a 14 month term of supervised
release.” The court also stated that “[t]he remaining conditions will remain the same.”
In its corresponding written judgment of February 25, 2010, the district court
imposed a 14-month term of imprisonment followed by a 46-month term of
supervised release. The district court’s oral pronouncement and its written judgment
therefore present a conflict, which the district court explicitly acknowledged in its
1
Prior to oral argument, the government filed an Urgent Motion to Dismiss
pursuant to the fugitive disentitlement doctrine, 28 U.S.C. § 2466. We have
considered the government’s Motion and McGinley’s opposition. The Motion is
denied.
2
The court initially pronounced that it was departing upwards but later clarified
that it was varying under § 3553(a).
2
minute order of April 1, 2010. McGinley argues that the district court’s oral sentence
on February 16 was unambiguous and should control. We disagree.
A sentence is imposed at “the oral announcement of the sentence.” Fed. R.
Crim. P. 35(c); see United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998).
Generally, a court may not correct or modify a prison sentence once it has been
imposed. 18 U.S.C. § 3582(c).
If, however, an orally pronounced sentence is ambiguous, the written judgment
may be relied upon to clarify the ambiguity. See United States v. Munoz-Dela Rosa,
495 F.2d 253, 255 (9th Cir. 1974) (per curiam); Green v. United States, 447 F.2d 987(9th Cir. 1971) (per curiam) (ambiguity of oral pronouncement “disappears” when
“[v]iewed in the light of the preciseness of the written sentence”). Ambiguous oral
pronouncements are those that are capable of two or more different constructions, all
of which are reasonable. See Allen, 157 F.3d at 668. A court may correct a sentence
resulting from arithmetical, technical, or other clear error within 14 days. Fed. R.
Crim. P. 35(a).
Here, examining the entire sentencing in context, the oral sentence was clearly
ambiguous. Specifically, the district court’s statement that McGinley was one of the
most dangerous people it had dealt with, coupled with its statement that it was varying
upwards, created ambiguity when it announced a sentence of 14 months supervised
3
release. While the 28 U.S.C. § 3553(a) factors are relevant in determining a term of
supervised release, there can be no upward variance regarding supervised release
because, unlike the advisory nature of the Sentencing Guidelines, the maximum terms
of supervised release are set by statute. See 18 U.S.C. § 3583(b). In addition, a 14-
month term of supervised release is well within the maximum range of 60 months of
supervised release that the court could have imposed given McGinley’s crime of
conviction, negating any need for an upward departure or variance even if one were
possible.
Having found that the oral pronouncement of sentence was ambiguous, we next
examine the district court’s written judgment. The record demonstrates that the
district court’s unambiguous February 25, 2010 written judgment clarifies the
ambiguities of the oral pronouncement. The court’s written judgment clearly imposes
a sentence of 14 months in custody of the Bureau of Prisons followed by a 46-month
term of supervised release, including all of the special conditions of supervision as
previously imposed, pursuant to 18 U.S.C. § 3583(h). In addition, the written
judgment states that the court “varies from the suggested guideline range based upon
the multiple incidents of defendant absconding and the violent criminal history of the
defendant.”
4
We therefore conclude that the district court did not err in clarifying its
ambiguous oral sentence with a written sentence within the 14 days allowed by Fed.
R. Crim. P. 35(a).
2. McGinley also contends that the district court’s imposition of a term of
supervised release of 46 months exceeded the statutory maximum under the rule of
lenity. We disagree.
McGinley argues that, under the rule of lenity, Congress’s decision to not
specify a maximum sentence for violations of 18 U.S.C. § 924(e) requires courts to
take the minimum sentence to be the maximum when determining the appropriate
term of supervised release. Under this argument, McGinley claims he is a Class C
felon and that the maximum term of supervised release for Class C felons is 36
months. We explicitly disagreed with this position in United States v. Bland, holding
that “the rule of lenity is simply unavailing in the face of the statutory language and
the clear intent behind [§ 924].” United States v. Bland, 961 F.2d 123, 128 (9th Cir.
1992) (“Section 924(e) is not ambiguous in terms, and it was clearly intended to
incapacitate and to punish severely recidivist violent and armed felons.”) This Court
is “bound by prior panel opinions ‘unless an en banc decision, Supreme Court
decision, or subsequent legislation undermines those decisions.’” In re Findley, 593
5
F.3d 1048, 1050 (9th Cir. 2010) (quoting Nghiem v. NEC Elec., Inc., 25 F.3d 1437,
1441 (9th Cir. 1994)).
We therefore conclude that the district court did not err in imposing a 46-month
term of supervised release.
AFFIRMED.
6