United States v. Spears

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWIGHT LAMAR SPEARS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00112-HFF-3)
Submitted: May 13, 2011 Decided: May 27, 2011
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
John M. Ervin, III, Darlington, South Carolina, for Appellant.
William N. Nettles, United States Attorney, William J. Watkins,
Jr., Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We affirmed Dwight Lamar Spears’ conviction for
conspiracy to murder a law enforcement officer in his prior
appeal. See United States v. Spears, 350 F. App’x 808 (4th Cir.
2009) (“Spears I”). Although we affirmed Spears’ conviction, we
remanded for resentencing because the trial facts revealed a
violation of 18 U.S.C.A. § 1114 (West Supp. 2010), rather than a
violation of 18 U.S.C. § 115(a)(1)(A) (2006). ∗
The transcript of the resentencing hearing on remand
reveals that the district court and Spears understood that the
matter was remanded for Spears to be resentenced under § 1114.
(J.A. 180-81, 193-94). The court again sentenced Spears to 240
months of imprisonment. (J.A. 194, 206). Nonetheless, despite
the parties’ and the district court’s clear understanding that
Spears was to be resentenced under § 1114, the second amended
criminal judgment denotes that Spears’ conviction was pursuant
to § 115(a)(1)(A).
∗
In vacating and remanding, we primarily relied on two
cases. See United States v. Massuet, 851 F.2d 111, 115 (4th
Cir. 1988)(noting that the proper procedure for dealing with the
problem of an erroneously cited statute would be to remand the
case for resentencing under the proper statute); United States
v. Bennett, 368 F.3d 1343, 1352-55 (11th Cir. 2004) (holding
that sufficient evidence supported a conviction for attempt to
kill an officer of the United States, under 18 U.S.C. § 1114,
where the defendant was actually charged with violating 18
U.S.C. § 115), vacated on other grounds, 543 U.S. 1110 (2005).
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Although we grant Spears’ motion to file his pro se
supplemental brief, we decline to address any of the issues
raised in that brief or his formal brief, as those issues are
all outside the scope of our mandate on remand. The mandate
rule is “merely a specific application” of the law of the case
doctrine, which “forecloses relitigation of issues expressly or
impliedly decided by the appellate court.” United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotation marks
omitted). The doctrine applies both to questions actually
decided as well as to those decided by necessary implication.
Sejman v. Warner–Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988).
All of the issues raised in Spears’ formal and informal briefs
are unrelated to our limited remand in Spears I. Thus, because
Spears fails to establish any of the exceptions to the mandate
rule, we decline to address on the merits any of the issues
raised in this appeal. United States v. Aramony, 166 F.3d 655,
661 (4th Cir. 1999) (discussing doctrine and exceptions
thereto). Thus, we affirm Spears’ 240-month sentence.
We remand, however, for correction of the clerical
error in the second amended judgment, showing that Spears was
convicted under § 115 rather than § 1114, as we directed in
Spears I. See Fed. R. Crim. P. 36; Rakes v. United States, 309
F.2d 686, 687-88 (4th Cir. 1962) (addressing correction under
Rule 35). To the extent that there is a conflict between the
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court’s comments at the sentencing hearing and the criminal
judgment, a court “should carry out the true intention of the
sentencing judge as this may be gathered from what he said at
the time of sentencing.” United States v. Morse, 344 F.2d 27,
30 (4th Cir. 1965). It is normally the rule that where a
conflict exists between an orally pronounced sentence and the
written judgment, the oral sentence will control. United States
v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003). The remedy
is to vacate the judgment and remand to the district court for
the purpose of correcting the written judgment to conform to the
oral sentence. Morse, 344 F.2d at 30-31 & n.1; Rakes, 309 F.2d
at 687.
Accordingly, we affirm Spears’ 240-month sentence for
conspiracy to murder a law enforcement official under § 1114 but
remand for correction of the clerical error made in the district
court’s second amended criminal judgment. 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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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