PUBLISH
UNITED STATES COURT OF APPEALS
Filed 4/11/96 TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
)
vs. ) No. 95-8053
)
DONALD KEITH BLACKWELL, )
)
Defendant-Appellee. )
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 94-CR-105)
Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States
Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellant.
Steven A. Wuthrich, Sandy, Utah, for Defendant-Appellee.
Before BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges.
BALDOCK, Circuit Judge.
The district court sentenced Defendant Donald Keith Blackwell to fifteen months
imprisonment for conspiring to distribute eight ounces of cocaine. Shortly thereafter, the
court learned that Defendant’s co-conspirator and supplier pleaded guilty to distributing
fifty-five ounces of cocaine and the United States District Court for the District of Utah
sentenced her to five-years probation. Concerned with the apparent disparity, the court,
on Defendant’s motion, convened a hearing seventy-two days after the initial sentence
date and resentenced Defendant to three-years probation.
“Federal courts are courts of limited jurisdiction.” Henry v. Office of Thrift
Supervision, 43 F.3d 507, 511 (10th Cir. 1994). Congress has authorized the federal
courts to modify a sentence only in limited circumstances. Because no congressional
enactment authorized the court to modify Defendant’s sentence in the instant case, the
court lacked jurisdiction to do so. We therefore reverse.
I.
In September 1994, a Wyoming grand jury returned a three-count indictment
against Defendant, charging him with conspiracy to possess with intent to distribute and
to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (Count I), and possession
with intent to distribute cocaine, 21 U.S.C. §§ 841(a), (b)(1)(C) (Counts II, III). In
February 1995, Defendant pleaded guilty to Count I of the indictment. In accord with the
terms of the plea agreement, on April 17, 1995, the government filed a Motion to Impose
Sentence Below the Guideline Range to reflect Defendant’s substantial assistance to
authorities. The government moved the court to grant Defendant a three-level reduction
in his offense level. The motion specified that a three-level reduction would reduce
Defendant’s offense level to 14, which when combined with criminal history category I,
yielded a guideline sentencing range of fifteen to twenty-one months imprisonment.
2
On April 24, 1995, the court held a sentencing hearing. The court granted the
government’s Motion to Impose Sentence Below the Guideline Range. The court
sentenced Defendant at the low end of the guideline range to fifteen months
imprisonment.
On June 14, 1995, Defendant filed a Motion for Resentencing and supported his
motion with a later filed brief. In his motion and brief, Defendant alleged that three days
prior to his sentencing, Defendant’s supplier pleaded guilty to distributing fifty-five
ounces of cocaine and the United States District Court for the District of Utah sentenced
her to probation. Defendant argued that, in light of this information, his sentence of
fifteen months imprisonment was unfair. Defendant maintained that the district court had
“almost complete discretion” to depart downward. Defendant cited Fed. R. Crim. P. 35
and requested “the Court . . . revisit the sentence in this case to provide for equal justice.”
In response, the court scheduled a hearing to determine “whether or not the court’s
original sentence should be vacated and the defendant resentenced.” The government
objected and contended the court was without jurisdiction to modify Defendant’s
sentence. The government argued that neither the Federal Rules of Criminal Procedure
nor any federal law empowered the district court to modify Defendant’s sentence.
Accordingly, the government requested the court vacate the resentencing hearing.
Over the government’s objection, the court held the resentencing hearing on July
3
5, 1995.1 The court ruled two alternative sources of authority empowered it to modify
Defendant’s sentence: (1) the court’s “inherent jurisdiction” to right injustices, and (2)
Fed. R. Crim. P. 35:
[1] This case, I think, requires the Court to rely on its inherent jurisdiction
to prevent an injustice. . . . [S]o I’m going to make--I’m going to grant the
motion for re-sentencing on the grounds of justice, on the ground that the
Court has the power nunc pro tunc to change sentences that were the result
of a clerical error, and the clear injustice.
[2] [I]t does to me seem just and fair to grant [Defendant’s] motion for
resentencing as if it were a Rule 35 motion that was made after having
cooperated with the United States.
At the conclusion of the hearing, the court resentenced Defendant to three-years
probation, with six-months home detention. On July 11, 1995, the court entered a
Correction or Reduction of Judgment in a Criminal Case. The caption of the Correction
order indicated that judgment was corrected “[p]ursuant to F.R. Crim. P. 35(a), (b), (c), or
Rule 36.” The government’s appeal followed.
1
Defendant argued for the first time at the resentencing hearing that 28 U.S.C.
§ 2255 authorized the court to resentence Defendant. The government responded that
Defendant had not filed a § 2255 petition with the court, and objected claiming unfair
surprise. The court concluded the government’s objection was valid, and did not rely on
§ 2255 to resentence Defendant. Defendant argues that we should liberally construe his
Fed. R. Crim. P. 35 Motion for Resentencing as a § 2255 petition, and affirm the district
court’s exercise of jurisdiction under § 2255. We decline to do so. Defendant did not file
a § 2255 petition in the district court, and we will not liberally construe pleadings
prepared by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Because
Defendant did not file a § 2255 petition, the court concluded the government’s unfair
surprise objection was valid, and did not rely on § 2255 to resentence Defendant. We
therefore do not consider § 2255 as an alternative basis for the court’s jurisdiction.
Defendant is, however, free to file a § 2255 petition in the future if he so desires.
4
II.
On appeal, the government argues that neither Rules 35 or 36, nor the court’s
“inherent jurisdiction” authorized the court to modify Defendant’s sentence in the instant
case. The government maintains, therefore, that the court lacked jurisdiction to
resentence Defendant. We review de novo the district court’s legal determination that it
possessed jurisdiction to modify Defendant’s sentence. See United States v. Maher, 919
F.2d 1482, 1485 (10th Cir. 1990) (“Legal conclusions are reviewed de novo.”); Henry, 43
F.3d at 511 (“The determination of the district court’s subject matter jurisdiction is a
question of law which we review de novo.”).
A.
A district court is authorized to modify a Defendant’s sentence only in specified
instances where Congress has expressly granted the court jurisdiction to do so. United
States v. Caterino, 29 F.3d 1390, 1394 (9th Cir. 1994) (“The authority to change a
sentence must derive from some federal statutory authority.”); see also United States v.
Hardage, 58 F.3d 569, 574 (10th Cir. 1995) (“[W]ith the exception of certain powers
which truly fit the rubric of ‘inherent power,’. . . federal courts cannot act in the absence
of statutory authority.”).3 Section 3582(c) of Title 18 of the United States Code provides
3
A district court also is empowered, of course, to modify a defendant’s sentence
pursuant to mandate from this court. See 28 U.S.C. § 2106 (federal appellate court may
reverse and remand for further proceedings).
5
three avenues through which the court may “modify a term of imprisonment once it has
been imposed.” 18 U.S.C. § 3582(c). A court may modify a sentence: (1) in certain
circumstances “upon motion of the Director of the Bureau of Prisons”; (2) “to the extent
otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal
Procedure”; or (3) “upon motion of the defendant or the Director of the Bureau of
Prisons,” or on the court’s own motion in cases where the applicable sentencing range
“has subsequently been lowered by the Sentencing Commission.” Id. at § 3582(c)(1)(A),
(c)(1)(B), (c)(2). Avenues one and three are inapposite to the instant case. Avenue two
offers Fed. R. Crim. P. 35 as the only potential source of authority to support the district
court’s modification of Defendant’s sentence. We address the court’s authority to modify
Defendant’s sentence under Rule 35, Rule 36,4 and its “inherent jurisdiction” in turn.
1.
Rule 35 of the Federal Rules of Criminal Procedure empowers a court to correct or
reduce a Defendant’s sentence in three specified instances. Subsection (a) authorizes a
district court to correct an illegal sentence on remand from a court of appeals. Fed. R.
4
We agree with the Fifth Circuit, that “[a]lthough § 3582(c) does not refer to Fed.
R. Crim. P. 36, we discern no intent on the part of Congress to preclude a court from
correcting” clerical mistakes and minor errors under Rule 36. United States v. Lopez, 26
F.3d 512, 515 n.5 (5th Cir. 1994). Section 3582(c) specifies the instances in which a
court can substantively modify a Defendant’s sentence. Rule 36, on the other hand,
grants the court authority to correct “clerical mistakes.” See Fed. R. Crim. P. 36.
Accordingly, Rule 36 does not fall within § 3582's exclusive statutory ambit of authority
to “modify a term of imprisonment.”
6
Crim. P. 35(a). Subsection (b) grants a court authority to “reduce a sentence to reflect a
defendant’s subsequent, substantial assistance” “on motion of the Government made
within one year after the imposition of the sentence.” Fed. R. Crim. P. 35(b) (emphasis
added). Finally, subsection (c) provides that a court “acting within 7 days after the
imposition of sentence, may correct a sentence that was imposed as a result of
arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(c).
None of these subsections apply to the instant case. Subsection (a) does not apply
because the case was not on remand to the district court. Subsection (c) does not apply,
inter alia, because the court did not correct Defendant’s sentence within seven days after
the original sentence was imposed, but resentenced Defendant seventy-two days later.5
See United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994) (seven-day time
limit imposed by Rule 35(c) is jurisdictional).
This leaves subsection (b). Subsection (b) applies “on motion of the Government
made within one year after the imposition of the sentence.” Fed. R. Crim. P. 35(b).
Because subsection (b) applies only to motions made by the government, a defendant
cannot invoke Rule 35(b) and empower the court to reduce his sentence. The
Defendant’s Motion for Resentencing, therefore, did not give the court authority to
5
In its brief and at oral argument, the government noted that the court resentenced
Defendant sixty-one days after the initial sentence date. By our math, April 24, 1995 to
July 5, 1995 is seventy-two days. Regardless whether it was sixty-one or seventy-two
days, however, the important point is that the court did not act within Rule 35(c)’s
seven-day period.
7
resentence him under Rule 35(b).6 Hence, Fed. R. Crim. P. 35(b) did not authorize the
district court to resentence Defendant in the instant case. Accordingly, we conclude that
Rule 35 did not empower the court to resentence Defendant in the instant case. The court
therefore erred in relying on Rule 35.
2.
Rule 36 provides that “[c]lerical mistakes in judgments, orders or other parts of the
record and errors in the record arising from oversight or omission may be corrected by the
court at any time and after such notice, if any, as the court orders.” Fed. R. Crim. P. 36.
Rule 36 gives the court authority to correct clerical-type errors, Fed. R. Crim. P. 36; see
Corey, 999 F.2d at 496-97 (court may correct clerical error in written judgment under
Rule 36), but does not give the court authority to substantively modify a Defendant’s
sentence. United States v. Werber, 51 F.3d 342, 347, 348 and n.16 (2d Cir. 1995)
(collecting cases and noting that Rule 36 allows the court to correct transcription errors,
but not “error[s] of law”); United States v. Fraley, 988 F.2d 4, 5-6 (4th Cir. 1993) (Rule
36 did not authorize court to modify Defendant’s sentence from ten to five months
imprisonment).
6
The only motion the government filed was its Motion to Impose Sentence Below
Guideline Range. The government filed this motion seven days before the court imposed
Defendant’s original sentence. Rule 35(b), however, applies only to government motions
made “within one year after the imposition of the sentence.” As a result, the
government’s Motion to Impose Sentence Below Guideline Range did not grant the court
authority to resentence Defendant under Rule 35(b).
8
In the instant case, the court substantively modified Defendant’s sentence from
fifteen-months imprisonment to three-years probation. Rule 36 does not authorize
substantive sentencing modification. E.g., Werber, 51 F.3d at 348 & n.16; Fraley, 988
F.2d at 5-6. Accordingly, we conclude the court erred in relying on Rule 36 to
substantively modify Defendant’s sentence.
B.
“A district court does not have inherent power to resentence defendants at any
time.” United States v. Lewis, 862 F.2d 748, 750 (9th Cir. 1988), cert. denied, 489 U.S.
1032 (1989); accord United States v. Corey, 999 F.2d 493, 496 (10th Cir. 1993); United
States v. Fahm, 13 F.3d 447, 453-54 (1st Cir. 1994). To the extent that Congress codified
the district court’s inherent power to correct certain sentencing errors in Fed. R. Crim. P.
35(c), it provided a strict seven-day time restriction for the court to do so. Fed. R. Crim.
P. 35(c); see Corey, 999 F.2d at 496 (“Subsection (c) codifies in limited form the inherent
authority of the district courts to correct sentencing errors.”); Fahm, 13 F.3d at 453-54
(“The 1991 amendment to Rule 35(c) was intended to codify the [Second and Fourth
Circuit’s holdings that a court has inherent jurisdiction to correct certain sentencing
errors] . . . but requires as well that the sentencing court act within the time frame
prescribed by the rule.”). Accordingly, we conclude the district court had no inherent
authority to resentence Defendant in the instant case. E.g., Lewis, 862 F.2d at 750.
9
III.
In sum, we conclude that neither Rules 35 or 36, nor the court’s “inherent
jurisdiction,” authorized it to modify Defendant’s sentence in the instant case.
Accordingly, the court lacked jurisdiction to resentence Defendant. We therefore
REVERSE and REMAND with instructions to reinstate Defendant’s original sentence.
REVERSED AND REMANDED.
10