United States v. Robert Kaye, Movant-Appellant , 739 F.2d 488 ( 1984 )

SCHROEDER, Circuit Judge.

In an earlier appeal we affirmed appellant’s conviction on multiple counts but remanded for correction of an inadvertent failure to sentence on two of- the counts. United States v. DeLuca, 692 F.2d 1277, 1286 (9th Cir.1982). The issue here is whether Federal Rule of Criminal Procedure 36, pertaining to clerical mistakes, permits a sentencing judge in making the correction to add an additional prison term.

Appellant Kaye was convicted of 20 counts of conspiracy, attempted extortion, damage by explosives and racketeering. In the original sentencing, the district court essentially divided the counts into two groups. The sentences in- each group were to run concurrent with each other but consecutive to the sentences in the other group.¹ The total term of imprisonment was eight and one-half years, followed by five years of probation. In the earlier appeal from that judgment, we affirmed the convictions on thirteen of the counts, and reversed the remainder. We noted that two of the’ counts we had affirmed had not been included in the judgment. We therefore remanded for correction of what “appeared to be a clerical error which may be corrected at any time. Fed.R.Crim.P. 36.” DeLuca, 692 F.2d at 1286.

On remand the district court easily could have included the missing count numbers in one of the existing groups, thus making no substantive change in the prison term which the defendant was to serve. The sentence would then have conformed to the counts on which the defendant had been convicted and which we had affirmed. Instead, however, the district court chose to make a new category of sentences to run consecutive to the other categories. The result was to increase appellant’s term of imprisonment from eight and one-half to nine years. This appeal comes to us from the denial of plaintiff’s motion pursuant to 28 U.S.C. § 2255 to vacate and modify the sentence.

We reverse. The motion should have been granted because the provisions of Rule 36 do not permit a substantive change in the period of incarceration which the defendant must serve. A change made under Fed.R.Crim.P. 36 can do no more than conform the sentence to the term which the record indicates was intended.

There is no doubt that the resentencing in this case constitutes a substantive departure from anything the parties could have expected from the record. Even though the district court may have intended earlier. to impose the sentence which he imposed on remand, nothing appears in the record to suggest this even remotely to the parties. Thus on remand the district court did not correct the form of the judgment to conform to what the record indicates was the correct form. When the district court added the additional six month term it made a substantive alteration.

The government argues that such a substantive change is permissible under Rule 36 so long as the court is correcting its own “oversight or omission.” The appellant correctly contends, however, that Rule 36 is a narrow provision limited to correction of errors of no more than clerical significance. Federal Rule of Criminal Procedure 36 states:

Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

Guidance on whether the rule permits substantive alterations in a judgment can be found in its Advisory Committee note, which states:

This rule continues existing law. Rupinski v. United States, 4 F.2d 17, C.C. A.6th. The rule is similar to Rule 60(a) of the Federal Rules of Civil Procedure, 28 U.S.C., Appendix.

Rupinski characterized the “existing law” the rule was designed to perpetuate as follows:

While the general rule is that the records and decrees of the court cannot be altered after the term, there is a well-recognized exception in the case of mere clerical errors.

4 F.2d at 18.

The Advisory Committee note to Rule 36 also leads us to the abundant case authority under Rule 60(a) of the Federal Rules of Civil Procedure. Cases under that rule verify that it is concerned with “mistakes which do not really attack the party’s fundamental right to the judgment at the time it was entered.” United States v. Stuart, 392 F.2d 60, 62 (3d Cir.1968). Similarly, in Kelley v. Bank Building and Equipment Corp., 453 F.2d 774, 778 (10th Cir.1972), the court stressed that the rule was for corrections rather than any “substantive change or amendment.” In Huey v. Teledyne, 608 F.2d 1234, 1237 (9th Cir.1979), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982), we characterized as a Rule 60(a) correction a district court’s change in its order to reflect dismissal with prejudice, where the change conformed the order to the court’s previous oral ruling and was regarded as purely technical.

The rationale of these cases would not permit a judge in a civil case to increase a damage award under Rule 60(a) simply because the judge had discovered he had forgotten about one element of damages. A fortiori, a sentencing judge should not be able under Fed.R.Crim.P. 36 to increase the number of years to be served under a criminal sentence. A criminal defendant is entitled to at least as much protection from such judicial afterthoughts as a civil defendant. See also 8A J. Moore, Moore’s Federal Practice § 36.02 at 36-4 (inadvertant errors are corrected under Rule 36 “to conform the record to the intention of the court and parties”).

Direct authority in this Circuit also exists on Rule 36. We have stated that “Rule 36 applies to clerical errors only.” United States v. Marchese, 341 F.2d 782, 788 (9th Cir.), cert. denied, 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64 (1965). See also 3 Wright, Federal Practice and Procedure § 611 at 527 (2d ed. 1982), which approvingly cites Nicholson v. United States, 303 F.2d 161 (9th Cir.1962), for the proposition that if the error or omission is indeed a judicial error, rather than a clerical mistake, it is not within the purview of the rule. Thus, in this case Rule-36 could not have been used for any purpose other than to correct the clerical error in omitting the numbers of the missing counts. It was not used properly to add a period of incarceration that the record does not indicate was previously authorized.

The government also argues that, despite the general principle that judgments cannot be altered after they have become final, and despite the limitations on Rule 36 as an exception to that general proposition, a different rule applies to sentencing. Relying upon Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the government contends that the only limitation upon any correction of a sentence is that it be done without unreasonable delay. See also Fed. R.Crim.P. 32(a)(1). It maintains that so long as there is no lack of diligence, the court may impose an increased sentence even after appeal of the original judgment.

In Pollard, the defendant’s original sentence of probation was invalid because it had been imposed in his absence. The Supreme Court ruled that on his reappearance, and in the absence of any unreasonable delay attributable to the government, the imposition of a prison sentence was valid. Pollard, 352 U.S. at 358-61, 77 S.Ct. at 484-85.

The crucial fact the government ignores is that the original sentence in this case, unlike the one in Pollard, was not a nullity. Both the parties and this court treated the sentence as a part of a single, valid, appeal-able judgment. Under Fed.R.Crim.P. 32, there can be no appealable judgment until the sentence has been imposed. The sentence is part of the judgment. See Fed.R. Crim.P. 32(b)(1) (“A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence.”). Thus, when we affirmed the convictions and remanded for correction of a clerical error, we could not have permitted the imposition of a substantively different judgment. Neither the rules of procedure that bind us nor our own sense of fair play permit a court to increase the defendant’s term of incarceration after the conviction has become final and the defendant has exercised, or waived the exercise, of all appeal rights.

Reversed and remanded for entry of an order directing that the sentence on counts 3 and 6 run concurrent with other sentences.

1 . The judgment stated:

Defendant has been convicted as charged of the offense(s) of conspiracy to damage property by means of explosives, making threats and committing acts of violence to obstruct commerce in violation of Title XVIII, U.S.C., Section 371, as charged in count 1 of the first superseding indictment; damage to property by means of explosives in violation of Title XVIII, U.S.C., Section 844(i), (j), as charged in counts 4, 10, 12, 14, 16 and 18 of the first superseding indictment; making threats and committing acts of violence to obstruct commerce in violation of Title XVIII, U.S.C., Section 1951 as charged in counts 2, 3, 5, 6, 7, 8, 9, 11, 13, 15, 17 and 19 of the first superseding indictment; racketeering in violation of Title XVIII, U.S.C., §§ 1962(c), 1963 as charged in count 20 of the first superseding indictment____ The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five years on count one; eight years on counts 2, 4, 5, 7, 12 and 14; and 8 years on counts 8, 9, 11, 13, 15, 16, 17, 18, 19 and 20.

IT IS FURTHER ADJUDGED as to counts 8, 9, 11, 13, 15, 16, 17, 18, 19 and 20, that pursuant to Title XVIII, U.S.C. Section 3651, the defendant shall be confined in a jail-type institution for the first six months; the balance is suspended and the defendant is placed on probation for a period of five years on the conditions he obey all Federal, State and local laws; comply with all rules and regulations of the Probation Officer.

IT IS ORDERED that the sentence on counts 1, 2, 4, 5, 7, 12 and 14 are to run concurrent and not consecutive.

IT IS ORDERED that the sentence on counts 8, 9, 11, 13, 15, 16, 17, 18, 19 and 20 are to run consecutive and not concurrent to the sentence on counts 1, 2, 4, 5, 7, 12 and 14.