UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4911
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SYLVESTER RUFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-17-BO)
Submitted: October 1, 2004 Decided: December 8, 2004
Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sylvester Ruffin pled guilty to possession of a firearm
by a felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced as an
armed career criminal to the statutory minimum term of 180 months
imprisonment. 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2004).
Because we find irreconcilable inconsistencies both in the oral
sentence and the written judgment, we vacate the sentence and
remand for resentencing. On remand, the district court should
clarify its prior intent and issue a corrected judgment order.*
Ruffin’s guideline range was 180-210 months. Before the
sentencing hearing, the government filed a motion for a substantial
assistance departure pursuant to U.S. Sentencing Guidelines Manual
§ 5K1.1, p.s. (2002), and 18 U.S.C.A. § 3553(e) (West Supp. 2004),
which authorized a departure below the guideline range and below
the mandatory minimum sentence. At the sentencing hearing, the
district court indicated that it would impose a sentence at the
bottom of the guideline range, i.e., 180 months. The government
then reminded the court that it had filed a motion for a
substantial assistance departure and described Ruffin’s
*
Counsel for Ruffin has filed a motion seeking leave to file
a supplemental brief addressing the effects of Blakely v.
Washington, 124 S. Ct. 2531 (2004). The motion is granted and the
motion is deemed to provide the supplemental argument concerning
Blakely. After consideration of this court’s decision in United
States v. Hammoud, 381 F.3d 316, 2004 WL 2005622 (4th Cir. Sept. 8,
2004) (en banc), we find any claim made in reliance on Blakely to
be without merit.
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cooperation. The court and the attorneys then had the following
exchange:
THE COURT: Why don’t you do a Rule 35 [motion] with him?
[AUSA] MOORE: It is a 5K and Rule –
THE COURT: Well, I mean, why don’t you let him perform
and then be – have his sentence modified. Are you going
to bring him back again or not?
[AUSA] MOORE: I am not sure if he is going to be brought
back or not.
MS. GRAVES: I was under the impression that it was not
very likely that he would be brought back, but under the
current policy, that he would be eligible for the 25
years, but –
THE COURT: All right. We’ll do this.
[AUSA] MOORE: We are recommending a 25 percent
reduction, 135 months.
THE COURT: All right.
MS. GRAVES: Your honor, I would ask that you consider
the reduction from the guideline range as it would be
without the armed career criminal, without the mandatory
minimum. His range would be 168 to 210, and I would ask
you to consider the reduction from the 168 rather than
from the 180.
THE COURT: He has had a pretty violent history here.
All right. This will be the judgment of the court. The
defendant is hereby confined to the custody of the U.S.
Bureau of Prisons or its authorized representative for
imprisonment for a term of 188 months.
The judgment and commitment order filed on the same day
showed that the court sentenced Ruffin to a term of 180 months
imprisonment. The accompanying statement of reasons identified the
guideline range determined by the district court as 180 to 210
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months. On the same page, two boxes were checked indicating that
“[t]he sentence departs from the guideline range upon motion of the
government, as a result of defendant’s substantial assistance.”
The sentence of 180 months was, however, the bottom of the
guideline range, not a departure below it.
Ruffin argues on appeal that both the sentencing
transcript and the written judgment order have internal
inconsistencies that make the judgment impermissibly ambiguous.
The government argues that the plain error standard of review
applies because Ruffin made no objection to the sentence when it
was pronounced or to the written judgment. See United States v.
Olano, 507 U.S. 725, 732-37 (1993) (stating plain error test).
The government maintains that the 180-month sentence set
out in the written judgment is not plainly erroneous because it is
within the guideline range and further argues that this Court lacks
jurisdiction to review the sentencing court’s decision not to
depart for substantial assistance. The government asserts that the
sentencing transcript is probably in error where it indicates that
the orally pronounced sentence was 188 months because the notes
taken by the government attorney at the time reflect that the court
imposed a sentence of 180 months. The government further asserts
that the notation in the written judgment order showing that the
court departed for substantial assistance is a clerical error.
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Ruffin invokes the principle that criminal sentences must
“reveal with fair certainty the intent of the court,” United States
v. Daugherty, 269 U.S. 360, 361 (1926), and argues that the
sentence imposed in his case fails this basic test. A sentence
that contains internal contradictions which make it subject to
multiple interpretations is ambiguous and requires resentencing if
the court’s intent cannot be discerned. United States. v. Moss,
614 F.2d 171, 174-75 (8th Cir. 1980).
Generally, when there is a conflict between the orally
pronounced sentence and the written judgment, the oral sentence
controls. Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir.
1962). Here, however, the government questions the accuracy of the
oral sentence apparently imposed (188 months), which was
inconsistent with the court’s initial stated intention to impose a
sentence at the bottom of the guideline range (180 months). When
the sentence is ambiguous because of inconsistency in the oral
pronouncement, the appellate court “will look to the written
judgment as evidence of the sentencing court’s intent.” United
States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003). However,
the written judgment is also inconsistent because it indicates that
the court departed below the guideline range for substantial
assistance while the sentence imposed is within the guideline
range.
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Rather than leave the sentence open to question, we
conclude that “it is in the interest of judicial economy and
fairness to all concerned parties [to] remand for clarification of
the sentence,” United States v. Patrick Petroleum Corp., 703 F.2d
94, 98 (5th Cir. 1982), and to permit the court to issue a new
judgment order which is internally consistent and also consistent
with the orally pronounced sentence.
We therefore vacate the sentence imposed by the district
court and remand for resentencing so that the district court may
clarify its prior intent and issue a corrected judgment order. 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.
VACATED AND REMANDED
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