UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AHMED MALACHI ABDEL-AZIZ, a/k/a
Bobby Seal, a/k/a Bobby Seals, No. 02-7599
a/k/a Ahmed Abdel Aziz, a/k/a
Jerome Smith, a/k/a Michael Smith,
a/k/a Cedric Ellison, a/k/a Fretral
McRae, a/k/a Chreshan Allen,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-75)
Submitted: March 19, 2003
Decided: June 17, 2003
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ahmed Malachi Abdel-Aziz, Appellant Pro Se. Dennis W. Duffy,
Assistant United States Attorney, Mary Jude Darrow, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
2 UNITED STATES v. ABDEL-AZIZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ahmed Abdel-Aziz, who pleaded guilty to one count of bank fraud
conspiracy, one count of mail fraud, one count of bank fraud, and one
count of filing a false income tax return, in violation of 18 U.S.C.
§§ 371, 1341, 1344(1), (2), 287 (2000), respectively, appeals the dis-
trict court’s denial of his "Motion to Correct Clerical Mistakes In
Judgment and Commitment Order Pursuant to Title 18 USCA Fed. R.
Crm. Proc. Rule 36." We have reviewed the record and find no
reversible error.
The basis of this appeal is that the oral pronouncement at Abdel-
Aziz’s sentencing hearing is internally ambiguous and inconsistent
with the written judgment of sentence with regard to the length of
imprisonment as to Counts Two and Three. Specifically, the sentenc-
ing transcript reflects that when the district court imposed the sen-
tence of imprisonment, it stated as follows: "[T]he defendant is . . . to
be imprisoned for a term of 100 months in each of Counts Two and
Three, and a term of 60 months in Count Three, and the criminal
information. All to be served concurrently." The written judgment*
reflects that the district court imposed concurrent 100-month sen-
tences as to Counts Two and Three of the indictment and fully con-
current 60-month sentences as to Count One of the indictment and
Count One of the criminal information. In denying Abdel-Aziz’s
motion to correct the judgment and commitment order, the district
court stated that it had reviewed the transcript of the sentencing hear-
ing and was convinced that there are no clerical errors in the judgment
and commitment order. On November 12, 2002, following the filing
of Abdel-Aziz’s notice of appeal, the district court entered an order
*While the written judgment and commitment order was amended at
the order of this court, the amendment does not affect the analysis of this
appeal.
UNITED STATES v. ABDEL-AZIZ 3
directing the clerk of the district court to amend the entry of the
docket sheet to reflect that Abdel-Aziz was sentenced to 100 months
on each of Counts Two and Three, concurrent with each other and
concurrent with Count One of the indictment.
On appeal, Abdel-Aziz claims the district court erred in denying
his motion to correct the judgment order, and was without jurisdiction
to order the clerk, on November 12, 2002, to amend the docket entry.
Abdel-Aziz further asserts, in the alternative, that if this court deems
that the district court’s November 12, 2002, order was correct, the dis-
trict court’s failure to reiterate his restitution sentence in that order
"cancelled" the restitution order such that he no longer should have
to pay it.
As a preliminary matter, Abdel-Aziz’s attempt to appeal the district
court’s November 12, 2002, order directing the clerk of court to
amend the docket entry is not properly before this court for consider-
ation in this appeal, because that order was entered by the district
court after the notice of appeal was filed. However, even if this court
had jurisdiction to consider this order, pursuant to Fed. R. Crim. P.
36, the district court has jurisdiction at any time to correct clerical
errors. Hence, Abdel-Aziz’s claim would be without merit. We find
specious Abdel-Aziz’s alternative claim that if the November 12,
2002, order to correct the docket entry is deemed proper he is
absolved from the requirement of paying restitution.
It is well established in this circuit that where a direct conflict
exists between the oral pronouncement at sentencing and the written
order of judgment, the oral sentencing order is to be followed and 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. Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir.
1962); see also United States v. Morse, 344 F.2d 27, 31 n.1 (4th Cir.
1965). This rule is followed where there is no ambiguity in the oral
pronouncement. Id.
Here, it is the oral pronouncement of sentence that is ambiguous
because the sentencing transcript reflects that the district court
imposed a sentence of imprisonment as to Count Three twice. To
impose the plain meaning of the words of this particular oral sentence
4 UNITED STATES v. ABDEL-AZIZ
would lead to an absurd result—two sentences of imprisonment on
Count Three and no sentence of imprisonment on Count One. See
United States v. Villano, 816 F.2d 1448, 1453 (10th Cir. 1987) (en
banc); see also Baca v. United States, 383 F.2d 154, 157 (10th Cir.
1967). While the district court twice mentioned Count Three in
imposing sentence, the fact that Abdel-Aziz pled guilty to Count One,
and the district court imposed a term of supervised release as to Count
One, supports the conclusion that the latter of the district court’s ref-
erences to Count Three was intended to relate to Count One. This
conclusion is bolstered by the district court’s statement in the order
denying Abdel-Aziz’s motion to correct clerical mistakes that the
judgment and commitment order is without error.
The obvious inference in this case is that either the district court
misspoke during the sentencing hearing, or the court reporter made a
clerical error, by making a second reference to Count Three instead
of referring to Count One. In any event, we find that the amended
judgment and commitment order accurately reflects the sentence
imposed and that the district court correctly held that no relief was
necessary on Abdel-Aziz’s motion to correct the written judgment.
Finally, we agree with the Government that even if Abdel-Aziz could
establish error with respect to the oral sentence of imprisonment rela-
tive to Count One, such error would be harmless under Fed. R. Crim.
P. 52(a), because Abdel-Aziz does not contest the validity of the adju-
dication as to Count One, and because the sixty-month sentence on
Count One was to run concurrently to the 100-month sentence
imposed on Counts Two and Three.
Accordingly, we affirm the district court’s order denying Abdel-
Aziz’s motion to correct the judgment and commitment order. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED