United States v. Powell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7921
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VERNON POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:99-cr-00514-PJM)
Argued: January 29, 2008 Decided: February 21, 2008
Before WILLIAMS, Chief Judge, NIEMEYER, Circuit Judge, and Liam
O’GRADY, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Vacated and remanded by unpublished opinion. Judge Niemeyer wrote
the opinion, in which Chief Judge Williams and Judge O’Grady
joined.
ARGUED: Daniel Harry Ginsburg, BENNETT & BAIR, L.L.P., Greenbelt,
Maryland, for Appellant. Jonathan Su, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: Fred Warren Bennett, Rachel
Marblestone Kamins, BENNETT & BAIR, L.L.P., Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, Deborah A. Johnston, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
Because Vernon Powell’s sentence was extended by more than 10
years as a result of an uncorrected clerical error, we remand this
case to the district court to correct the clerical error pursuant
to Federal Rule of Criminal Procedure 36 and then to resentence
Powell.
Vernon Powell was convicted of trafficking in illegal drugs,
and, on May 25, 2001, was sentenced as a career offender to 360
months’ imprisonment. Powell qualified as a career offender by
having had two prior Maryland state felony convictions “of a
controlled substance offense.” See U.S.S.G. § 4B1.1(a)(3). A
“controlled substance offense” is a federal or state offense,
punishable by more than one year imprisonment, that “prohibits the
manufacture, import, export, distribution, or dispensing of a
controlled substance . . . or the possession of a controlled
substance . . . with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2(b) (emphasis added).
Thus, we have held that a conviction for mere possession of
controlled substances does not qualify as a “controlled substance
offense” under § 4B1.1 because it is not accompanied by the intent
to manufacture, import, export, distribute, or dispense, as
required by the language of § 4B1.2. See United States v. Neal, 27
F.3d 90, 92 (4th Cir. 1994).
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In March 2005, some four years after Powell’s judgment of
conviction, Powell’s counsel discovered that because of a clerical
error in the state court, one of Powell’s predicate offenses did
not qualify as “a controlled substance offense” under U.S.S.G. §
4B1.1(a)(3). Counsel was reviewing the guilty pleas and sentencing
transcripts from Powell’s 1989 state drug conviction and discovered
that due to a clerical error, the state court’s docket entry for
Powell’s 1989 drug conviction was incorrect. Although Powell had
entered a guilty plea to Count 3 of his 1989 indictment, charging
conspiracy to possess a controlled dangerous substance, the state
court’s docket entry erroneously recorded that Powell was convicted
of Count 4 of his indictment, charging conspiracy to violate the
controlled dangerous substance laws, a broader offense. As a
result of the error, Powell was improperly sentenced as a career
offender under the Sentencing Guidelines because he did not have
two qualifying predicate offenses.
In the then pending proceeding before the district court under
28 U.S.C. § 2255, Powell’s counsel filed a “Supplement” to his §
2255 motion, arguing that on the basis of the clerical error,
Powell was improperly sentenced as a career offender. While that
motion was pending, Powell’s counsel filed a parallel motion in the
Circuit Court for Prince George’s County, Maryland, where the
conviction had been recorded, to correct the erroneous docket entry
for his 1989 state conviction, and the state court granted Powell’s
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motion on June 10, 2005, showing that he pleaded guilty to Count 3,
not to Count 4 as had been recorded.
The government agrees that the actual state court offense to
which Powell pleaded guilty was not a qualifying offense and that
Powell in fact did not qualify to be sentenced as a career
offender. The government contends, however, that Powell is too
late in seeking to correct the error now because of the one-year
statute of limitations included in § 2255. Thus, it maintains that
Powell must serve his 360-month sentence even though it agrees he
could not legally have been sentenced to that time. The legal
sentence, it agrees, would have been one between 188 to 235 months,
which is more than 10 years shorter than the sentence he received.
The district court denied Powell’s motion to vacate his
sentence, finding it to be time-barred by 28 U.S.C. § 2255's
statute of limitations, and Powell filed this appeal.
It is no doubt true that the important interest of finality in
judicial proceedings requires that judicial and substantive errors
in cases be laid to rest after specified time periods. Thus, even
though § 2255 authorizes motions to attack sentences on the grounds
that they were imposed (1) in violation of the Constitution, (2) in
violation of federal laws, (3) without jurisdiction, (4) in excess
of the maximum authorized by law, or (5) as otherwise subject to
collateral attack, the provision requires that any such motion be
filed within one year after the judgment of conviction becomes
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final or after other dates specified in § 2255, which are not
governing here. The same policy of finality is also manifested in
Federal Rule of Criminal Procedure 35(a), which authorizes a court
to correct a sentence within seven days after it is entered for
“arithmetical, technical, or other clear error.”
But when an error is purely a “clerical error in a judgment,
order, or other part of the record,” the policy of finality is
trumped and a court is authorized to correct the error at any time.
See Fed. R. Crim. P. 36. Such an error, however, may not be a
judicial or substantive error but must be purely clerical. The
errors most commonly subject to correction under Rule 36 are thus
recording or scrivener’s errors that make a difference. See
generally 3 Charles Alan Wright, Nancy J. King & Susan R. Klein,
Federal Practice and Procedure § 611 (3d. ed. 2004). Thus, Rule 36
has been employed to amend a judgment to include an obviously
omitted forfeiture order, see United States v. Yeje-Cabrera, 430
F.3d 1, 13-16 (1st Cir. 2005); or to correct a judgment that
erroneously cited the controlling statute, see United States v.
Chapman, 345 F.3d 630, 637 (8th Cir. 2003); or to correct the
amount of a restitution ordered by the court, see United States v.
Ervasti, 201 F.3d 1029 (8th Cir. 2000); or to correct a judgment to
refer to a lesser included offense to which the defendant pleaded
guilty, rather than to the charge contained in the indictment, see
United States v. Blackwell, 515 F.2d 125, 127 (4th Cir. 1975).
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In this case, the error was much like that in Blackwell where
the clerk recorded the wrong offense to which the defendant pleaded
guilty. Powell pleaded guilty in state court to Count 3, which
charged him with conspiracy to possess a controlled dangerous
substance, and not to Count 4, but the clerk erroneously recorded
him as pleading guilty to Count 4. Accordingly, Powell’s sentence
in federal court, imposed on the basis of the state court clerk’s
recording error, was over 10 years longer than it otherwise would
have been. While the clerical error was not made by employees of
the federal court, it nonetheless became part of the federal
court’s record for purposes of sentencing in this case. As the
state court has now corrected the clerical error, we too will order
a correction of the same error in the federal court record.
Accordingly, we remand this case to the district court to
correct the error in reporting Powell’s predicate offenses under
Federal Rule of Criminal Procedure 36 and then to resentence him in
accordance with the corrected record.
VACATED AND REMANDED
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