United States v. Phillips

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4030
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JOHN J. PHILLIPS,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-04-448)
Submitted: August 4, 2006 Decided: August 14, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded with instructions by unpublished per curiam
opinion.
Paul J. McNulty, United States Attorney, Stephanie Bibighaus
Hammerstrom, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellant. Edward S.
Rosenthal, Cary S. Greenberg, Caroline E. Costle, Lana M. Manitta,
RICH, GREENBERG, ROSENTHAL & COSTLE, L.L.P., Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John J. Phillips pled guilty to one count of wire fraud in
violation of 18 U.S.C. § 1343 and was sentenced to 46 months of
imprisonment, the low end of the appropriate guidelines range. On
Phillips’ motion for reconsideration, the district court modified
his sentence to 30 months of imprisonment based on his “age and his
health related difficulties.” J.A. 154. The government now
appeals, arguing that the district court was without authority to
modify Phillips’ sentence. We vacate the modified sentence and
remand with instructions to impose the sentence as originally
pronounced.
Fed. R. Crim. P. 35(a) allows a district court to alter a
sentence only to “correct a sentence that resulted from
arithmetical, technical, or other clear error.” The authority of
the district court to modify a sentence pursuant to Rule 35(a) is
limited. See United States v. Layman, 116 F.3d 105, 108 (4th Cir.
1997).1 Rule 35(a) “is not intended to afford the court the
opportunity to reconsider the application or interpretation of the
sentencing guidelines or for the court simply to change its mind
1
Layman was decided under the former Rule 35(c), which has
since been amended and renamed as the current Rule 35(a). The
advisory committee’s note to the relevant 2002 amendments provides
that “no change in practice is intended” by the slight change in
wording. United States v. Shank, 395 F.3d 466, 468 n.3 (4th Cir.
2005) (internal punctuation omitted).
2
about the appropriateness fo the sentence.” Id. (internal
punctuation omitted).
Before pronouncing its original sentence, the district court
explicitly took into account Phillips’ age and health related
issues. J.A. 128 (“Your doctors have outlined the serious health
issues that you have and your age 62”). The district court later
modified Phillips’ sentence based solely upon his age and health.
J.A. 154. We conclude that this modification was not prompted by
“arithmetical, technical, or other clear error,” Fed. R. Crim. P.
35(a), “but rather was the product of a change of heart by the
sentencing judge,” Layman, 116 F.3d at 109.2 Accordingly, the
modified sentence is improper.
We therefore vacate the modified sentence and remand with
instructions to impose the sentence as originally pronounced. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED WITH INSTRUCTIONS
2
Notwithstanding Phillips’ arguments to the contrary, we find
no merit to his contention that United States v. Booker, 543 U.S.
220 (2005), altered our precedent regarding the modification of
sentences under Rule 35(a).
3