United States v. Garcia

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0163n.06
Filed: February 25, 2009
07-3375
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MOISES GARCIA, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )
Before: DAUGHTREY, CLAY, and McKEAGUE, Circuit Judges.
PER CURIAM. In this sentencing appeal, the government challenges the district
court’s jurisdiction to reduce the defendant’s original sentence in an order entered beyond
the seven-day time limit set by 18 U.S.C. § 3582 and Federal Rule of Criminal Procedure
35 for modification of a sentence, contending that the order must be vacated and the
original sentence reinstated. The defendant argues in response that the government has
waived any objection to the question of jurisdiction under Rule 35 and that, because the
district court imposed only a conditional sentence at his sentencing hearing, the later order
reducing his sentence was an appropriate adjustment once he had met the condition set
by the district court. We conclude that procedural deficiencies in the sentencing process
caused by virtually everyone concerned – the parties, their counsel, the court, and even
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United States v. Garcia
the court clerk – require us to vacate the defendant’s sentence and remand the matter for
re-sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The procedural snarl in this case undoubtedly had its genesis in the defendant’s
rejection of a plea agreement proposed by the government, apparently at the advice of his
attorney, who was concerned that the provision in the agreement requiring a waiver of the
defendant’s right to appeal would compromise Garcia’s rights under the much-anticipated
outcome in the Booker case, then pending before the United States Supreme Court. See
United States v. Booker, 543 U.S. 220 (2005). As a result, Garcia pleaded guilty to two
offenses – participation in a conspiracy to distribute cocaine and distribution of cocaine –
without the benefit of a plea agreement, thereby ostensibly forfeiting the possibility of a
two-level reduction of his base offense level in exchange for his commitment to pursue
voluntary removal to his home country of Mexico at the completion of his prison term.
Ironically, by the date of the defendant’s sentencing hearing on June 17, 2005, Booker had
been decided, making the applicable sentencing guidelines no longer mandatory.
However, the government refused to revive the original offer regarding Garcia’s eventual
deportation.
Counsel for Garcia nevertheless asked the district court to grant the two-level
reduction in the defendant’s offense level, based on his client’s willingness to submit to
voluntary removal to Mexico directly from prison. The government adamantly opposed the
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United States v. Garcia
request, arguing that Garcia should not be allowed this benefit in the absence of
“concessions” that would have been required had the original plea agreement been
executed. The government further insisted that because Garcia had not filed the proper
paperwork waiving his right to challenge deportation, if the court granted the reduction, it
would be permitting the departure based on an “empty promise” that the defendant could
later recant without any consequence.
The district judge was apparently unimpressed with the government’s argument
regarding the lack of concession on the defendant’s part, but was also unwilling to grant
the reduction in the absence of a written waiver. As a result, the district judge calculated
the applicable guidelines range without the two-level reduction and announced that “if [the
defendant] can provide [the proper paperwork], then I will include two points [in reduction]
for that. If he can’t provide it, then I will not include those two points.” The judge gave
Garcia until June 30, 2005, approximately two weeks after the June 17 hearing, to execute
and submit copies of the proper voluntary-departure documentation, indicating that the
judgment and commitment order would not be issued until then. The judge also indicated
that if and when the two-level reduction was applied, the relevant guideline range would
be 63 to 78 months, down from a range of 78 to 97 months without the two-level reduction.
Although the government continued to object to the proposed departure, the prosecution
did not object specifically to the court’s decision to structure the sentence in this alternative
manner, either on jurisdictional or any other grounds.
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United States v. Garcia
The district court then imposed a sentence of 78 months, which was at the bottom
of the advisory guideline-sentencing range as calculated without the two-level reduction.
The judge explained that she was sentencing at the lowest end of the range because
similar sentences had been recommended for the other defendants involved in the
conspiracy, but she failed to offer any further rationale for the sentence in terms of the 18
U.S.C. § 3553(a) factors. Although the judge clearly indicated that the sentence just
pronounced was subject to a “two point reduction” if the proper paperwork was submitted
by the end of the month, she did not specify where in the resulting range of 63-78 months
the alternative sentence would fall in that event.
Three days after the hearing, on June 20, 2005, the minutes of the sentencing
hearing were entered on the docket, providing in relevant part:
Defendant sentenced to 78 months as to count one . . . . The court is willing
to amend the J&C if a subsequent statement is filed on consent that the
defendant has complied with the deportation paperwork, at that time the
Judgment will be amended to reflect a two point reduction in the offense
level; creating a guideline of 63-78 months. To be submitted on or before 6-
30-05.
Despite the district judge’s statement at the sentencing hearing indicating that judgment
would not be officially entered in the case until June 30, 2005, the judgment order was
actually entered on June 21, 2005 – obviously in error – sentencing the defendant to 78
months, with no indication that the sentence was conditional in any respect.
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07-3375
United States v. Garcia
Three days after the judgment was entered, on June 24, 2005, the government filed
a motion opposing any further sentencing reduction. In that motion, the government
acknowledged that the defendant had turned in the appropriate immigration paperwork, but
indicated that it still opposed the two-level reduction because “the Government received
no consideration in the form of an executed plea agreement.”
On June 30, 2005, the deadline given by the district court for submitting the proper
paperwork, the defendant submitted a response to the government’s motion, arguing that
the government “should not be permitted to frustrate the express intent of the Court by
arbitrarily refusing to execute the relevant deportation documents Defendant has tendered
to the government in good faith,” and attaching a copy of the documentation he had
submitted. In this pleading, the defendant also “request[ed] that the Court grant the
reduction for the reasons stated herein, and as the Court proposed at the sentencing
hearing on June 17, 2005, sentence the Defendant to a term of sixty-three (63) months
rather than seventy-eight (78) months.”
Approximately 19 months later,1 on January 26, 2007, the district court issued an
order “den[ying] the Government’s motion [of June 24, 2005], order[ing] a two (2) level
downward departure in Garcia’s offense level, and amend[ing] Garcia’s sentence to a term
of 63 months imprisonment.” The court went on to state in relevant part:
1
Although the reason for the delay is not clear from the record, there is a suggestion that the
district judge was ill during this period.
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As Garcia has now waived any right to challenge his deportation, pursuant
to U.S.S.G. § § 5K2.0 and 18 U.S.C. §§ 3553(a)(6), (b)(1), the court hereby
grants an additional two point downward departure, resulting in a net offense
level of 26 points. The court finds that the value of the right to challenge
deportation that Garcia is surrendering is sufficient to justify a two point
downward departure under 18 U.S.C. § 3553(b)(1) and U.S.S.G. § § 5K2.0.
The court also finds that because Juan Herrera [a co-defendant] received
precisely the same downward departure for giving up precisely the same
rights Garcia now waives, 18 U.S.C. § 3553(a)(6)’s command to treat
similarly situated defendants similarly also justifies the two point downward
departure.
Combining Garcia’s new base offense level of 26 points with his criminal
history category I leaves a guidelines range of 63 to 78 months
imprisonment. The court therefore sentences Garcia to a term of 63 months
imprisonment, and accordingly amends the June 21, 2005 judgment and
commitment.
A new judgment and commitment order was never entered, but the government now
appeals the January 2007 order reducing Garcia’s sentence to 63 months.
DISCUSSION
The government contends that the district court’s order reducing Garcia’s sentence
from 78 to 63 months violated 18 U.S.C. § 3582(c), which, in pertinent part, incorporates
the limitations on sentence modification set out in Federal Rule of Criminal Procedure 35.2
According to the government’s argument, this alleged statutory violation left the district
court without jurisdiction to modify Garcia’s sentence in January 2007. Consequently, the
2
Rule 35, in turn, governs when and why a district court may correct an error in a sentencing
order.
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government asks us to vacate the order reducing the defendant’s sentence to 63 months
and remand with instructions to reinstate the 78-month sentence imposed in June 2005.
Garcia argues in response that the district court initially assessed a “conditional” or
“alternative” sentence and that the order now on appeal simply imposes the sentence
actually contemplated by the district court, rather than correcting an error or otherwise
modifying the sentence under Rule 35. Garcia therefore asks that we uphold the 63-month
sentence.
In fact, the record does suggest that at the defendant’s sentencing hearing, the
district court intended to impose what amounted to an alternative or conditional sentence,
i.e., a 78-month sentence if the defendant did not turn in the proper paperwork and another,
lower, sentence if he did. It is also clear, however, that the district court failed to specify
what that alternative sentence would be, instead setting out merely what guideline range
would apply. Only much later did the district court enter an order that set the sentence,
finally, at 63 months – the lowest possible sentence available under the newly-applicable
guideline range, discussing some, but certainly not all, of the factors mandated by
§ 3553(a). That omission was but one of several procedural irregularities associated with
the entry of the final sentencing order.
Jurisdiction under Rule 35
Pursuant to 18 U.S.C. § 3582, a district court “may not modify a term of
imprisonment once it has been imposed” except in certain limited circumstances, including
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the only one arguably relevant to this case: “to the extent otherwise expressly permitted . . .
by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). That
rule provides, in pertinent part, that “[w]ithin 7 days after sentencing, the court may correct
a sentence that resulted from arithmetical, technical or other clear error.” Fed. R. Crim. P.
35(a). Rule 35 also defines “sentencing” as “the oral announcement of the sentence.” Fed.
R. Crim. P. 35(c). In this case, the government contends that the district court’s final order,
filed 19 months after the defendant’s sentencing hearing, “modified a term of imprisonment
once it ha[d] been imposed.” Therefore, the government argues, the district court had no
jurisdiction to enter the modification beyond Rule 35’s seven-day limit, and the attempt at
modification had no effect and should be vacated.
In its recent opinions in Kontrick v. Ryan, 540 U.S. 443 (2004), Eberhart v. United
States, 546 U.S. 12 (2005), and Arbaugh v. Y & H Corporation, 546 U.S. 500 (2006), the
Supreme Court expounded upon the difference between time limitations that are properly
characterized as subject-matter limitations and those that in the past had been mistakenly
referred to as “jurisdictional” but were actually inflexible, but waivable, claims-processing
rules. In the wake of these opinions, there was some confusion about the category into
which Rule 35 should fall. See United States v. Sterling, No. 06-6081, 2007 WL 962849,
at * 2 (10th Cir. Apr. 2, 2007) (“Eberhart v. United States calls into doubt the jurisdictional
nature of Rule 35(a)’s time limits.”); but see United States v. Vicol, 460 F.3d 693, 694 (6th
Cir. 2006) (treating Rule 35(a) as a “jurisdictional limitation[ ]” without explicitly discussing
Eberhart). However, in its most recent decision on the issue, Bowles v. Russell, ___ U.S.
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___, 127 S. Ct. 2360 (2007), a majority of the Supreme Court (over a fervent dissent) held
that the key difference between the two categories was whether the time limit at issue was
statutorily fixed. See id., 127 S.Ct. at 2364 n.2 (explaining the “jurisdictional significance
of the fact that a time limitation is set forth in a statute”).
Since Bowles was decided, the First and Third Circuits have re-examined Rule 35
in light of its reasoning and have held that because Rule 35 is incorporated into 18 U.S.C.
§ 3582(c)(1)(B), its time limit is statutory and, therefore, jurisdictional. See United States
v. Higgs, 504 F.3d 456, 464 (3d Cir. 2007); United States v. Griffin, 524 F.3d 71, 83-84 (1st
Cir. 2008). Hence, those opinions suggest that if the January 2007 order in this case is
viewed as providing a modification of Garcia’s sentence under Rule 35, as the government
insists, Vicol remains good law, and we would be required to hold that the district court
lacked jurisdiction to enter that order. See Vicol, 460 F.3d at 694 (court must actually
resentence defendant within seven days of oral pronouncement of original sentence to
comply with Rule 35's time limit; vacating second sentence).
Moreover, we – along with a number of other circuits that have addressed the issue
– have held that when a modified sentence is vacated on Rule 35 grounds, the original
sentence is not properly before us unless it, too, was appealed and, if not, a remand for
resentencing is unnecessary. See id. at 696-97; United States v. Martin, 913 F.2d 1172,
1177 (6th Cir. 1990); Higgs, 504 F.3d at 464; United States v. Austin, 217 F.3d 595, 598
(8th Cir. 2000); United States v. Barragan-Mendoza, 174 F.3d 1024, 1030 (9th Cir. 1999).
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In this case, of course, there was no appeal of the June 2005 sentencing order by either party.
Conditional or Alternative Sentencing
There is no jurisdictional problem, however, if the January 2007 order is, as the
defendant argues, not a Rule 35 modification but simply the entry of a conditional sentence
initially imposed in June 2005 – as contemplated by the district court and both parties,
neither of whom appealed any aspect of that 2005 sentence. There is, apparently, scant
case law addressing conditional sentences, in this circuit or elsewhere. Both parties cite
an unpublished case from this court, United States v. Bordayo, No. 01-2169, 2003 WL
463484 (6th Cir. Feb. 18, 2003), involving the revocation of Bordayo’s supervised release
and the imposition of a new term of incarceration, which was to be followed by a conditional
term of supervised release. If the defendant successfully participated in a voluntary drug
program while in prison, the district court pronounced, he would not need to serve an
additional period of supervised release. If, however, he did not complete the program, he
would be subject to an additional term of supervised release. The judgment entry noted the
conditional nature of the supervised release term. Bordayo appealed, arguing that the
district court did not have authority to impose a conditional sentence because it would
amount to resentencing at the completion of incarceration, outside the specified time period.
Reviewing for plain error, the panel rejected this argument, stating:
Bordayo’s premise that his conditional sentence is tantamount to
resentencing after the ten-day appeal period has expired is flawed, since his
sentence is precise and unequivocal, and there is no need for the district
court to revisit it – by way of amendment or other order – in the future.
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Id. at * 5.
The defendant points to Bordayo as an indication that conditional sentences are
recognized in this circuit as valid and not subject to challenge on jurisdictional grounds. He
posits that his sentence was indeed a conditional sentence, as shown by the oral
pronouncement and the written notation on the docket, although he appears to concede that
its conditional nature was not noted on the actual judgment entered – presumably in error
– on June 21, 2005. The government does not contest that, in general, a district court has
the power to issue a conditional or alternative sentence. Instead, it contends that in this
case, Garcia’s sentence cannot be a valid conditional sentence because the district court
did not specify a particular alternative sentence. Hence, the argument goes, by setting out
only the sentencing range that was conditionally applicable, the district court failed to
impose an alternative sentence that was “precise and unequivocal,” in the words of the
Bordayo court. We note, however, that the need to state a precise term of months, now
invoked by the government, was not suggested to the district court at the sentencing
hearing. Nor, as we have noted previously, was a contemporaneous objection to the
conditional nature of the sentence made by the government.
We conclude that the district court’s flawed attempt at a conditional sentence –
flawed in that it was not “precise and unequivocal” – was just one instance of the procedural
problems that marked the sentencing process in this case. As a threshold matter, the
unpublished decision in Bordayo notwithstanding, the legal validity of a conditional sentence
is not a foregone conclusion, in this circuit or elsewhere.
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For example, in United States v. Martin, 913 F.2d 1172 (6th Cir. 1990), we reviewed
a “dual sentencing” procedure in which the district court imposed a conditional sentence in
a situation similar to that prevailing in the run-up to Booker. The district court orally
announced two sentences – a higher, guideline-based sentence and a lower, non-guideline-
based sentence – clearly indicating to both the defendant and the government that if the
validity of the guidelines were upheld, the alternative guideline-based sentence would take
effect and a new judgment and commitment order would be entered at that time. However,
the judgment and commitment order was drafted to reflect the non-guideline sentence only.
Neither party appealed from the original judgment and commitment order. After the
Supreme Court upheld the guidelines, and 134 days after entry of the judgment, the district
court sua sponte entered a second judgment and commitment order that implemented the
higher, guideline-based sentence that had been orally announced. The defendant appealed
from this second judgment, and we held in a split decision that the district court lacked
jurisdiction to enter its subsequent order, rejecting the argument propounded by the
dissenting panel member that the second judgment was valid because the original sentence
was a permissible conditional sentence. See id. at 1174-75. The majority held that “there
exists no current or historical statutory or judicial precedent to support a legal theory of
‘conditional sentencing’ that could or would have, under facts similar to those of the instant
case, perpetuated the jurisdiction of the trial court . . . .” Id. at 1175. The majority went on
to explain that, to the extent conditional sentencing was acceptable, the fulfillment of the
condition must rest within “the personal control of the defendant and not some independent
third party or entity such as the Supreme Court . . . .” Id. at 1176. Moreover, the majority
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noted that because the judgment “made no reference to the alternative sentence . . . [it]
must therefore stand alone, independent of the dialogue that occurred between the parties
during the sentencing hearing for the reason that courts speak only through their journal
entries.” Id. at 1175.
Garcia’s case is certainly distinguishable from Martin insofar as the condition at issue
– turning in the proper paperwork – was within the control of Garcia, rather than a third
party. The more problematic aspect of the Martin opinion is its pronouncement that the
“courts speak only through their journal entries,” id. at 1175, which assumes that a court’s
judgment rather than the oral pronouncement of the sentence is controlling. In support of
this contention, the Martin court cited several Sixth Circuit opinions, including Chapman v.
United States, 247 F.2d 879, 881 (6th Cir. 1957), which held that
[t]he Court speaks through its judgment . . . . If the entry is inaccurate there
is a remedy by motion in a direct proceeding in the same action to correct it
to the end that it may speak the truth. . . . Until corrected in a direct
proceeding the Court will close its ears to the claim that the written judgment
is actually not the judgment of the court.
But none of the cases cited in Martin, including Chapman, involved a conflict between the
oral imposition of a sentence and the written judgment and, therefore, each is
distinguishable on its facts from this case.3
3
Goldman v. Commissioner, 388 F.2d 476, 478 (6th Cir. 1967), involved a dispute
about the “fair market value” of certain property for tax purposes and whether the Tax
Court improperly relied on factually erroneous testimony. We observed that “a court
speaks only through its orders” and that nothing in the Tax Court’s findings of fact or legal
conclusions indicated that it had improperly calculated the property’s reasonable value.
United States v. Eisner, 329 F.2d 410, 412 (6th. Cir. 1964), involved a bond forfeiture
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Moreover, insofar as the Martin opinion seems to hold that a court’s journal entry
trumps the oral announcement of the court’s judgment, it overlooks the long-standing rule
in this circuit that the oral pronouncement of the sentence is controlling. See United States
v. Cofield, 233 F.3d 405, 406-07 (6th Cir. 2000) (noting the “widely accepted rule” that “if
there is a discrepancy between the oral pronouncement of a criminal sentence and the
written judgment, the oral sentence generally controls”); United States v. Schultz, 855 F.2d
1217, 1225 (6th Cir. 1988) (noting the “long line of cases that hold that when an oral
sentence conflicts with the written sentence, the oral sentence controls”); cf. Fed. R. Crim.
dispute, in which we were asked to decide whether the defendant’s failure to “surrender
himself” to the U.S. Marshal caused a forfeiture of his bond. We noted that “[a] court of
record speaks only through its records” and that there was no evidence of any formal
written court-order directing the defendant to surrender and held, therefore, that mere
failure to surrender in the absence of a directive to do so did not require a forfeiture. In
Chapman, 247 F.2d at 880, the defendant challenged the validity of his plea of nolo
contendere, arguing that “the transcript of the proceedings at the time when the plea of
nolo contendere was entered . . . [did] not show any formal or express withdrawal by him
of the plea of not guilty.” We held that the district court’s written judgment, in dictating that
the previously entered not guilty plea had been withdrawn, spoke for itself and was
controlling. In Odekirk v. Ryan, 85 F.2d 313, 315 (6th Cir. 1936), a habeas case, we
considered the petitioner’s claim that his two state sentences should run concurrently, and
we observed that nothing in the record indicated that the second sentencing court knew
about the first sentence or intended to impose a concurrent sentence. We concluded that
because the “court speaks through its records” and the record was silent as to the second
court’s knowledge or intent, the petitioner could not prevail. I.T.S. Rubber Co. v. Tee Pee
Rubber Co., 295 F. 479, 482 (6th Cir. 1924), presented the question of whether an
injunction issued by the district court was still in force. We held that the injunction had
been vacated and was not, as the appellants argued, severable into component parts. We
further observed that “[c]ourts can speak only through their records, and the record in this
respect is unambiguous.” At issue in Flannigan v. Consol. Rail Corp., 888 F.2d 127, 127
(6th Cir. 1989), was the trial court’s supposed failure to rule on the defendant’s motion for
judgment notwithstanding the verdict. More specifically, the defendant claimed that the
district court’s opinion insufficiently addressed his JNOV motion. In dismissing this claim
and affirming the district court, we noted that “a court speaks officially through its orders,
not its opinions.” The district court’s final order clearly spoke to the JNOV motion.
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P. 35(c) (“As used in this rule, ‘sentencing’ means the oral announcement of the
sentence.”).
Given this line of cases, it would be possible to conclude that the district court’s last
order, entered on January 26, 2007, was – despite its amendatory language – neither an
amendment nor a modification of the original sentence but was, rather, an attempt to
impose the original sentence pronounced by the court, as well as the one anticipated by the
parties, given the fact that neither the government nor the defendant took steps to file a
direct appeal from the earlier June 2005 judgment. However, because the district court
failed to specify at the sentencing hearing what the actual alternative sentence would be,
and because the court did not adequately discuss the § 3553(a) factors with regard to either
sentence, we conclude that neither the original sentencing order nor the subsequent order
can be upheld. See United States v. Vicol, 514 F.3d 559, 561 (6th Cir. 2008) (“We may
hold that a district court abused its discretion if it committed one of the following ‘significant
procedural errors’: improperly calculating the guidelines range, treating the guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence . . . .”). Although the
district court eventually explained, in part, its reasoning for the 63-month sentence set out
in its final order, a full exposition of the § 3553(a) factors relevant to both sentences should
have been provided at the sentencing hearing itself, giving the parties an opportunity to
respond to the court’s reasoning. As a result, we conclude that the appropriate remedy is
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to vacate both of the court’s sentencing orders and remand the case for a new sentencing
hearing.
CONCLUSION
For the reasons set out above, we REVERSE the judgment entered below and
REMAND this case to the district court for the purpose of conducting a new sentencing
hearing.
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