ELIZABETH BARON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5257 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A5) is reported at 902 F.2d 1065. JURISDICTION The judgment of the court of appeals was entered on May 1, 1990. The petition for a writ of certiorari was filed on July 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court had authority to correct an obvious and undisputed error in a sentence without a remand. STATEMENT Petitioner pleaded guilty to one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1). She was sentenced to three years' imprisonment, to be followed by a four-year term of supervised release, and ordered to pay a $50 special assessment. 1. Petitioner was originally charged with several offenses committed in the summer of 1988 that involved importation of, and possession with intent to distribute, more than five kilograms of cocaine. Petitioner entered into a plea agreement with the government in which she agreed to plead guilty to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C), and to cooperate with the government. The parties further agreed, in accordance with Fed. R. Crim. P. 11(e)(1)(C), to a specific sentence as the appropriate disposition of the case. /1/ Under this agreement, the term of imprisonment would be three years, the term of supervised release would be at least three years, the court could impose a fine of up to $1,000,000, and the court would order petitioner to pay a $50 special assessment. Pet. App. A1-A2; Pet. C.A. App. 85-88. On April 26, 1989, the district court accepted the plea agreement after both the Assistant United States Attorney and the court stated that the agreed term of imprisonment was three years. Pet. C.A. App. 11, 20, 23, 26. /2/ On Friday, July 21, 1989, petitioner was erroneously sentenced to a term of imprisonment equal to the time she had already served (approximately ten months), to be followed by a five-year term of supervised release, and ordered to pay a $50 special assessment. Pet. App. A2. The cause of this error was twofold: First, the Assistant United States Attorney who appeared at sentencing was unfamiliar with the case and mistakenly stated that the plea agreement provided a three-year "cap" on the prison term rather than a three-year term. Pet. App. A2; Pet. C.A. App. 2-3 & 47. Second, there was a typographical error in the presentence report that changed the probation officer's recommendation of a 36-month term of imprisonment (as set forth in the officer's handwritten draft of the report) into a recommendation of a 6-month term of imprisonment. Pet. App. A2; Gov't C.A. App. 1-2. Three days after sentencing, on Monday, July 24, 1989, the government told the court that the sentence was inconsistent with the plea agreement and requested that petitioner be resentenced in accordance with the agreement. Pet. App. A2. At an August 1, 1989, sentencing hearing, petitioner's counsel stated that he did not challenge the fact that the plea agreement called for a definite three-year term of imprisonment. Pet. C.A. App. 56. /3/ He argued that, notwithstanding this fact, the district court had no authority to correct the mistake. This argument was based on the theory that Fed. R. Crim. P. 35(a) had been amended to strip district courts of any inherent authority to correct mistakes in a sentence. /4/ Under this theory, the district court's authority was limited to resentencing a defendant after the case was remanded by the court of appeals. Pet. App. A2. The district court rejected this argument and held that it had inherent authority to correct the mistake in this case. Ibid. The court further held that correction of the mistake did not violate the Double Jeopardy Clause. Ibid. The court sentenced petitioner to a three-year term of imprisonment, to be followed by a four-year term of supervised release, and ordered petitioner to pay a $50 special assessment. Ibid. This was the sentence that petitioner had agreed to in the plea agreement previously accepted by the court. 2. The court of appeals affirmed. Pet. App. A1-A5. It held that under the circumstances of this case the district court had inherent authority to correct the mistake in the sentence and properly exercised that authority. Id. at A4. The court below based this holding on an examination of the history of the district courts' inherent authority to correct sentences. It determined that former Rule 35(a) codified the district courts' common law authority in this regard. Id. at A3. The court then determined that the 1984 amendment of Rule 35(a) "facilitate(d) the expansion of appellate review of sentencing, in light of the Sentencing Guidelines, without diminishing the district court's power in various situations to correct its own obvious errors in sentencing." Ibid. The court concluded that the trial court exercised that power properly in correcting petitioner's sentence. Id. at A4. /5/ ARGUMENT Petitioner renews her contention (Pet. 9-18) that the district court lacked authority to correct her sentence because under Fed. R. Crim. P. 35(a), as amended in 1984, district courts may correct sentences only upon remand. This contention is incorrect and in any event does not merit the attention of this Court. 1. Petitioner's contention rests on an interpretation of Rule 35(a) that has no support in the language of the Rule. Petitioner reads Rule 35(a) to state that a court may correct a sentence only upon remand. See Pet. 10. The Rule could easily have been drafted to say this, but it was not. Rule 35(a) is drafted as a command ("the court shall correct a sentence") to be followed under specified circumstances, namely, when a sentence is set aside on appeal and the case is remanded. Fed. R. Crim. P. 35(a); see also 18 U.S.C. 3742(f). Rule 35(a) thus does not address situations in which the specified circumstances do not obtain -- for example, where, as in this case, the court corrects an obvious and undisputed mistake before the time for appealing the sentence under 18 U.S.C. 3742 has expired. 2.a. The only other court of appeals that has addressed the contention made here rejected it. United States v. Cook, 890 F.2d 672, 674-675 (4th Cir. 1989). In Cook, the Fourth Circuit, like the court below, held that a district court retains inherent authority "to correct an acknowledged and obvious mistake" within the time for filing notice of appeal of the sentence. Id. at 674-675. Cook concerned an inadvertent deviation from the United State Sentencing Commission Guidelines. See 18 U.S.C. 3551 et seq. In Cook, the district court stated at the sentencing hearing that it intended to impose a sentence under Guideline Section 5C2.1(c). 890 F.2d at 674. In pronouncing sentence, however, the court inadvertently sentenced Cook to a lesser punishment than was prescribed under this Guideline. Ibid. Upon discovering the mistake three weeks later, the court sua sponte amended its sentencing order to conform to the Guideline. Ibid. As in this case, it was undisputed that the amended sentence was the sentence the court intended to impose and informed the defendant it would impose. Ibid. The Fourth Circuit affirmed the amended sentence in an opinion by Judge Wilkins, Chairman of the United States Sentencing Commission. The court rejected the broad contention that, as amended by the Sentencing Reform Act of 1984, Rule 35(a) "allows a district court to amend a sentence only by correcting the sentence on remand." Ibid. The court observed that Rule 35 was amended "so that it would accord with 18 U.S.C.A. Section 3742 concerning appellate review of sentences," with the purpose that "the sentence imposed in the public forum during the sentencing hearing would remain constant, immune from later modification." Id. at 674-675. This purpose, the court concluded, is not undermined by "recogniz(ing) the inherent power in a court to correct an acknowledged and obvious mistake." Id. at 675. b. These decisions are consistent with the common law and with the history of Rule 35. As this Court has recognized, at common law district courts had inherent authority to correct unlawful sentences: The trial court's increase of a sentence, so long as it took place during the same term of court, was permitted. * * * This accounts for the established practice in the federal courts that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence. United States v. DiFrancesco, 449 U.S. 117, 133-134 (1980). /6/ This common law authority continued to exist after Rule 35(a) was promulgated in 1946; the first sentence of former Rule 35(a) recognized that "(t)he court may correct an illegal sentence at any time." Fed. R. Crim. P. 35, 18 U.S.C. (1946); see also id., Notes of Advisory Committee on Rules. Former Rule 35(a) "was a codification of existing law and was intended to remove any doubt * * * as to the jurisdiction of a District Court to correct an illegal sentence after the expiration of the term at which it was entered." Hill v. United States, 368 U.S. 424, 430 n.8 (1962) (quoting Heflin v. United States, 358 U.S. 415, 422 (1959) (Stewart, J., concurring)). /7/ In sum, former Rule 35(a) did not disturb the existing authority of courts to correct unlawful sentences at any time. /8/ Congress amended Rule 35(a) when it created the Sentencing Guidelines system in the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, Section 215(b), 98 Stat. 2015. The amendment conformed Rule 35(a) to a new provision, enacted as 18 U.S.C. 3742, that authorized appellate review of sentences at the instance of either the defendant or the government. Appellate review under Section 3742 could be sought on any of three grounds: that the sentence was (1) "imposed in violation of law"; (2) "was imposed as a result of an incorrect application of the sentencing guidelines"; or (3) deviated from the applicable guideline range and was unreasonable. 18 U.S.C. 3742(b) and (e). The corresponding change to Rule 35(a) required the district court upon remand to correct any sentence set aside on any of these grounds. /9/ Like the language of amended Rule 35(a), the legislative history of the 1984 amendment of the Rule provides no support for petitioner's contention that the Rule strips district courts of their inherent authority to correct sentences. Earlier versions of the amendment did, in contrast to the final version, retain the language in former Rule 35(a) that explicitly authorized a district court to correct an illegal sentence at any time. See, e.g., S.1437, 95th Cong., 1st Sess. (1977) (proposed 18 U.S.C. 3725; proposed amendment of Fed. R. Crim. P. 35). These earlier versions were accompanied by a proposed appeal provision that limited appellate review of a sentence to the challenge that the sentence fell outside the Guidelines found by the sentencing court to be applicable. Ibid. Both the proposed amendment to Rule 35(a) and the proposed appeal provision were later amended to address concerns voiced during committee hearings by Judge Gerald B. Tjoflat on behalf of the Judicial Conference of the United States. Judge Tjoflat expressed two concerns about the earlier proposals: (1) that they would delay finality in sentencing because they provided for one appeal concerning whether the sentence fell within the Guideline range found by the sentencing court to be applicable and another appeal concerning whether the sentencing court applied the correct Guidelines; and (2) that they posed a risk of overlapping jurisdiction because they permitted the district court to consider a challenge that a sentence was illegal at the same time as other challenges to the sentence were being considered on appeal. Reform of the Federal Criminal Laws: Hearings on S.1630 Before the Senate Comm. on the Judiciary, 97th Cong., 1st Sess., Part XVI at 11912-11913 (1981). The final versions of Rule 35 and Section 3742 accordingly provided for a single appeal of all of these challenges. Neither Cook nor the decision below implicates Judge Tjoflat's concerns. The decisions do not delay appellate review of sentences because they uphold corrections to sentences that are made before the time to appeal has expired; indeed, the decisions promote finality of sentences that would otherwise be appealed only to correct an obvious and undisputed error. For the same reason, the decisions do not fragment appellate review; the court of appeals retains authority to consider all challenges to a sentence permitted under Section 3742. 3. This case does not merit this Court's attention in any event. Petitioner was not harmed by the district court's action. Petitioner acknowledged that the district court had made a mistake. If the district court had not corrected the mistake, the government would have appealed, and the court of appeals would certainly have set aside the sentence because of the acknowledged error. Furthermore, the question presented may soon be of no continuing importance. In November 1990, the Advisory Committee on Criminal Rules will consider an amendment to Fed. R. Crim. P. 35 that codifies the district courts' authority to correct mathematical and technical errors in a sentence and requires that such corrections be made within seven days of its imposition. The error here was corrected within the proposed time limit and is a technical error within the meaning of the proposed amendments. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General KAREN SKRIVSETH Attorney SEPTEMBER 1990 /1/ Under Fed. R. Crim. P. 11(e)(1)(C), the defendant and the government may "agree that a specific sentence is the appropriate disposition of the case." Under Fed. R. Crim. P. 11(e)(2), the court may either accept or reject an agreement under Rule 11(e)(1)(C). If the court accepts the agreement, it must inform the defendant that "it will embody in the judgment and sentence the disposition provided for in the plea agreement." Fed. R. Crim. P. 11(e)(3). If the court rejects the plea agreement, it must give the defendant an opportunity to withdraw the plea and advise the defendant that, if she persists in the plea, the sentence may be less favorable than that contemplated under the plea agreement. Fed. R. Crim. P. 11(e)(4). /2/ Had petitioner not entered into the plea agreement and agreed to cooperate with the government, her sentence under the Sentencing Guidelines would have been 121 to 151 months' imprisonment. Gov't C.A. App. 1-2. /3/ Petitioner's counsel also stated that petitioner did not wish to withdraw her plea. Pet. C.A. App. 55-56. /4/ Before November 1, 1987, Fed. R. Crim. P. 35(a) provided that "(t)he (district) court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence." Effective November 1, 1987, Fed. R. Crim. P. 35(a) was amended by Section 215(b) of the Sentencing Reform Act of 1984 (Pub. L. 98-473, title II, Section 215(b), 98 Stat. 2015) to read as follows: The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court -- (1) for imposition of a sentence in accord with the findings of the court of appeals; or (2) for further sentencing proceedings if, after such further sentencing proceedings, the court determines that the original sentence was incorrect. /5/ The court also held that correction of the sentence did not subject petitioner to double jeopardy. Pet. App. A4-A5. Petitioner does not pursue her double jeopardy claim here. /6/ The parenthetical qualification related to double jeopardy concerns, not to the inherent power of the court to correct mistakes. It is well established that a mistake in a sentence may be corrected without running afoul of the Double Jeopardy Clause, see, e.g., Jones v. Thomas, 109 S. Ct. 2522, 2525 (1989); Bozza v. United States, 330 U.S. 160 (1947); United States v. Lundien, 769 F.2d 981, 984-987 (4th Cir. 1985); United States v. Giacalone, 739 F.2d 40, 43-44 (2d Cir. 1984), and petitioner does not claim otherwise here. /7/ Doubt as to the court's authority to correct a sentence at any time had arisen because that authority had previously applied only during the term of the court and because Fed. R. Crim. P. 45(c) (rescinded and replaced by 28 U.S.C. 138) eliminated the significance of terms of court. /8/ Petitioner devotes much attention (Pet. 14-18) to distinguishing sentences that are unlawful from those imposed in an unlawful manner. Petitioner's efforts are misguided, for as the court below determined, the sentence mistakenly pronounced in this case was unlawful: It did not conform to the plea agreement or to the Sentencing Guidelines. Pet. App. A2; see also Cook, 890 F.2d at 675 (sentence was unlawful because it did not conform to Sentencing Guidelines). Compare Hill, 368 U.S. at 430 & n.9 (sentence imposed at hearing in which defendant was not afforded an opportunity to make statement in his own behalf was imposed in an unlawful manner) with Heflin, 358 U.S. at 418 and 422 (imposition of separate sentences for single offense was unlawful). /9/ The Senate Committee on the Judiciary explained: Section 205(b) (of the Sentencing Reform Act of 1984) amends Rule 35 * * * in order to accord with the provisions of proposed section 3742 of title 18 concerning appellate review of sentence. New subdivision (a) requires the court to correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the guidelines, or to be unreasonable. S. Rep. No. 225, 98th Cong., 1st Sess. 158.