Monday, May 13, 2013

Oral Pronouncement of 12-Month Sentence Was Binding; 33-month Sentence Reversed

U.S. v. Luna-Acosta, 2013 WL 1848761 (5/3/13) (N.M.) (Published) - Reversal of a written judgment for a sentence of 33 months in prison and an order requiring a written judgment reflecting the district judge's oral pronouncement of a 12-month sentence. Defense counsel asked the judge to impose a sentence within a range of 12-18 months, despite a guideline range of 33-41, because when making the plea offer the government had indicated the offense level would be much lower than it turned out to be. Nonetheless, the judge announced a sentence of 33 months to be followed by 2 years of supervised release. The judge granted the defense request to continue the sentencing a couple weeks to when the guidelines would call for no supervised release. At the continuation of that hearing, undaunted, defense counsel asked the judge to reconsider his announcement of a 33-month sentence, explaining her rationale again. The AUSA made no objection, despite being afforded the opportunity to do so. The judge, persuaded by defense counsel's argument, orally announced a 12-month sentence. 5 months later the judge issued a written judgment for 33 months, explaining he only continued the hearing to change the supervised-release part of the sentence. He had no jurisdiction to change the 33-month sentence, once he announced it, the judge declared. And besides, he complained, he has so many cases it's hard to keep track of them all and neither party alerted him to what was happening [not true].
The 10th, in line with 5th Circuit precedent, held the judge's oral announcement of the 33-month sentence did not automatically divest the judge of jurisdiction to change the sentence. He continued the sentencing for all purposes. Although the defense only raised the supervised release issue, the judge continued the hearing before she could have asked for a reconsideration of the prison time, as she did at the next hearing. The nasty 10th Circuit precedent that requires us to make objections after the d. ct. pronounces sentence shows that a d. ct. has the power to correct a sentence after orally pronouncing it until the sentencing is adjourned. It doesn't matter that the next hearing was a few weeks after the first. It might take that long for a d. ct. to consider and research an objection. Because of all that, the 12-month sentence was the real sentence. The d. ct. did not have authority to change the sentence after the 14 days provided by Rule 35(a) to correct a sentence for clear error. In line with a 7th Circuit case, the 10th holds a challenge to a sentence imposed without jurisdiction was not within the scope of the appeal waiver.