United States v. Jennings

13-1724-cr
USA v. Jennings
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 21st day of April, two thousand fourteen.
5
6 PRESENT: ROBERT D. SACK,
7 DENNIS JACOBS,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-1724-cr
16
17 KEITH JENNINGS,
18 Defendant-Appellant.1
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20
21 FOR APPELLANT: MOLLY CORBETT, Research &
22 Writing Specialist, Federal
23 Public Defender’s Office, for
24 Lisa Peebles, Federal Public
1
The Clerk of Court is directed to amend the
caption as above.
1
1 Defender for the Northern
2 District of New York, Albany,
3 New York.
4
5 FOR APPELLEE: ELIZABETH S. RIKER, Assistant
6 United States Attorney, Of
7 Counsel (John M. Katko,
8 Assistant United States
9 Attorney, Of Counsel, on the
10 brief), for Richard S.
11 Hartunian, United States
12 Attorney for the Northern
13 District of New York, Albany,
14 New York.
15
16 Appeal from a denial of a pro se2 letter motion to
17 correct the judgment of conviction (McAvoy, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the district court be
21 REVERSED.
22
23 Keith Jennings moves under Federal Rule of Criminal
24 Procedure 36 to correct the written judgment of conviction
25 entered on March 29, 2000, which states that he was
26 convicted of violating 21 U.S.C. § 848(b). We review the
27 district court’s decision to deny Jennings’s Rule 36 motion
28 de novo. See United States v. Burd, 86 F.3d 285, 287 (2d
29 Cir. 1996).
30
31 Jennings was convicted by a jury in the Northern
32 District of New York on multiple charges related to his
33 operation of a large-scale drug ring: (1) engaging in a
34 continuing criminal enterprise (“CCE”) under 21 U.S.C. §
35 848(a) and (c); (2) conspiracy to possess with intent to
36 distribute and to distribute cocaine, crack cocaine and
37 marijuana under 21 U.S.C. §§ 846, 841(a)(1); (3) two counts
38 of possession with intent to distribute and distribution of
39 cocaine under 21 U.S.C. § 841(a)(1); (4) two counts of
40 possession with intent to distribute and distribution of
41 cocaine base under 21 U.S.C. § 841(a)(1); and (5) conspiracy
42 to commit money laundering under 18 U.S.C. §§ 1956(h),
43 (a)(1)(A)(i), (a)(1)(B)(i).
2
Jennings appeared pro se below, but now is
represented by counsel.
2
1 Jennings was sentenced to three life terms (one on the
2 § 848 count), and three terms of twenty years, all to run
3 concurrently.3 Jennings failed in all of his post-
4 conviction initiatives: a direct appeal; a motion under 28
5 U.S.C. § 2255; five motions for reduction of sentence under
6 18 U.S.C. § 3582(c); and motions for reconsideration and
7 clarification and two appeals. We assume the parties’
8 familiarity with the underlying facts, the procedural
9 history, and the issues presented for review.
10
11 Section 848(c) defines engagement in a “continuing
12 criminal enterprise” as requiring, among other things, that
13 the defendant had a supervisory position with respect to
14 five or more persons, and obtained substantial income or
15 resources from the offense. Subsection (a) prescribes a
16 penalty of 20 years to life for anyone who engages in a CCE.
17 Subsection (b) sets forth a penalty of mandatory life
18 imprisonment if the defendant was one of the principal
19 leaders of the enterprise, and the violation involved at
20 least 300 times the quantity of a substance described in 21
21 U.S.C. § 841(b)(1)(B).
22
23 The Government claims that Jennings actually was
24 sentenced under subsection (b) and that the requisite
25 findings under that subsection were never submitted to the
26 jury. This would have been error as “it was the
27 government’s burden to prove all the elements of section
28 848(b) beyond a reasonable doubt[.]” United States v.
29 Torres, 901 F.2d 205, 229 (2d Cir. 1990).
30
31 However, it does not appear that Jennings’ life
32 sentence was imposed under subsection (b). Rather, the
33 district court arrived at the life sentence under § 848 by a
34 Guidelines calculation that properly took into account a
35 broad range of factors, some of which would have been
36 relevant to a conviction under subsection (b).
37
38 The only error is in the written judgment. Under
39 Federal Rule of Criminal Procedure 36, “a district judge, at
40 any time, [may] amend the written judgment so that it
41 conforms with the oral sentence pronounced by the court.”
42 United States v. Werber, 51 F.3d 342, 347-48 (2d Cir. 1995).
43 We therefore remand for the district court to amend the
3
The narcotics conspiracy count was dismissed at
sentencing as a lesser included offense of § 848.
3
1 judgment to reflect that Jennings was not convicted of a
2 violation of 21 U.S.C. § 848(b). Beyond that, no further
3 proceedings are required.
4
5 For the foregoing reasons, we hereby REVERSE the denial
6 of Jennings’ Rule 36 motion and REMAND for clerical
7 correction of the written judgment of conviction.
8
9 FOR THE COURT:
10 CATHERINE O’HAGAN WOLFE, CLERK
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