United States v. Weathers, Marc , 631 F.3d 560 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2010 Decided February 11, 2011
No. 07-3115
UNITED STATES OF AMERICA,
APPELLEE
v.
MARC K. WEATHERS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00165-02)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Elizabeth Gabriel, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and Angela
G. Schmidt, Assistant U.S. Attorneys. Roy W. McLeese III,
Assistant U.S. Attorney, entered an appearance.
Before: TATEL, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: The question is whether
the district court’s written judgment setting forth the defendant’s
sentence contradicted the court’s oral pronouncement of the
sentence or instead clarified it.
While in prison awaiting trial on thirty-some counts of rape
and related offenses, Marc K. Weathers took steps to have the
prosecutor, the rape victims and an informant murdered. See
United States v. Weathers, 186 F.3d 948, 949-51 (D.C. Cir.
1999). For these crimes, he was convicted on two federal and
four D.C. Code counts. At the sentencing hearing in 1997, the
district court ordered Weathers’ sentences on the federal counts
(counts one and four) to run consecutively and his sentences on
the D.C. counts (counts two, three, five and six) to run
consecutively to each other and concurrently with the sentences
on the federal counts. We vacated Weathers’ conviction on
count five and remanded for resentencing. United States v.
Weathers, 493 F.3d 229, 239 (D.C. Cir. 2007).
By the time of the resentencing hearing in 2007, the
Sentencing Guidelines had become advisory only. See United
States v. Booker, 543 U.S. 220, 245 (2005). Weathers urged the
court to give him a sentence below the Guidelines range and to
impose concurrent, rather than consecutive, terms of
imprisonment. After giving Weathers and his counsel the
opportunity to speak, the court explained that it was “going to
impose the sentence that was . . . imposed approximately ten
years ago.” The court went on to describe the sentence it was
ordering. The terms of imprisonment were identical to the
previous sentence, save for the vacated count five. The court
said that the sentences on the two federal counts (one and four)
were to run consecutively to each other and concurrently with
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the sentences on the D.C. counts, as they had in the 1997
sentence. The court did not mention whether the sentences on
the D.C. counts were to run consecutively to each other, as they
had in the original sentence. The written judgment form, signed
a week later, ordered the sentences on the D.C. counts to run
consecutively to each other and concurrently with the federal
sentences.
Federal law provides that multiple terms of imprisonment
imposed at the same time run concurrently unless the court
orders that they run consecutively. 18 U.S.C. § 3584(a).
Because the court did not, at the resentencing hearing, say the
D.C. sentences were to run consecutively and because “the
written judgment form is a nullity to the extent it conflicts with
the previously pronounced sentence,” United States v. Booker,
436 F.3d 238, 245 (D.C. Cir. 2006), Weathers reasons that his
sentences on the D.C. counts must run concurrently with each
other.
If the concern is with accuracy, one wonders why a court’s
oral pronouncement of a sentence would ever take precedence
over its written judgment. It is commonly understood that the
written word is usually more precise than the spoken word. The
writer can be more deliberate and careful in his choice of
language, he can edit his writing before publishing it and he may
have more time to formulate what he wishes to convey. (Of
course there may be no appreciable difference if the speaker is
simply reciting a written text; there is no indication the court
was doing so here.)
Yet the law is settled that the oral sentence controls. See
United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010). As a
result of a 2004 amendment, the principle is now reflected in the
Federal Rules of Criminal Procedure. See FED. R. CRIM.
P. 35(c). One supporting theory is that the defendant has a right
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to be present at sentencing and that permitting the written
judgment to control would be tantamount to sentencing the
defendant in absentia. See United States v. Villano, 816 F.2d
1448, 1452-53 (10th Cir. 1987) (en banc); see also FED. R.
CRIM. P. 43. Another theory, often repeated, is that the oral
sentence is the actual judgment of the court and the written
judgment is merely evidence of the actual judgment. See, e.g.,
Booker, 436 F.3d at 245; Gilliam v. United States, 269 F.2d 770,
772 (D.C. Cir. 1959); Villano, 816 F.2d at 1452-53; United
States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974). This
rationale seems more conclusory than analytical. Rule 32(k) of
the Federal Rules of Criminal Procedure, which specifies what
the judgment in a criminal case must contain, plainly
contemplates a written judgment—the “judge must sign the
judgment, and the clerk must enter it.” The written judgment,
then, would seem to be the “actual” judgment, not merely
evidence of it. See also FED. R. APP. P. 4(b)(1)(A) (the
defendant’s notice of appeal must be filed within 14 days of “the
entry of . . . the judgment”); Pollard v. United States, 352 U.S.
354, 360 & n.4 (1957); Richards v. United States, 192 F.2d 602,
603-04 (D.C. Cir. 1951).
Although the written judgment does not control, it is not an
empty formality. The written judgment may clarify ambiguities
in the court’s oral statements. Love, 593 F.3d at 9. “Therefore,
we will not remand for the district court to correct a written
judgment that clarifies—rather than contradicts—the oral
pronouncement of sentence.” Ibid.So here. Although the district court did not use the word
“consecutively” in pronouncing sentence on the D.C. counts, the
court had stated a moment earlier that it was “going to impose
the sentence that . . . [it] imposed” at Weathers’ first sentencing,
a sentence that included consecutive terms for the D.C.
violations. An ambiguity thus arose. The written judgment did
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not contradict anything the court said, but it did make clear that
the sentences on the D.C. counts were to run consecutively.
That was entirely consistent with the court’s statement that the
new sentence would be the same as the old one (with the
exception of count five, as everyone understood). And the
combination of the oral sentence and the written judgment
satisfied 18 U.S.C. § 3584(a)’s requirement that the court
affirmatively order consecutive sentences.
Weathers thinks his case is indistinguishable from the en
banc decision of the Tenth Circuit in United States v. Villano.
But there is an essential difference. The Villano court found that
the written judgment contradicted the spoken judgment. 816
F.2d at at 1451. Here there would be a contradiction only if we
assumed that the spoken judgment made the D.C. sentences run
concurrently. To make that assumption would be to assume
away the question in the case and ignore the district court’s
statement that it was imposing the same sentence as it had
imposed ten years earlier.
Affirmed.