[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1289
UNITED STATES,
Appellee,
v.
JULES DELGADO VALENCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Jules Delgado Valencia on brief pro se.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant U.S. Attorney, and Nelson Pérez-Sosa, Assistant U.S.
Attorney, on brief for appellee.
August 27, 2001
Per Curiam. Upon the agreement of the parties, and
after a thorough review of the record and of the submissions,
we reverse the district court’s order denying appellant Jules
Delgado Valencia’s (“Delgado’s”) motion for relief pursuant to
Fed. R. Crim. P. 36, and we vacate the judgment and remand with
instructions to amend the sentence accordingly.
At sentencing, the court unambiguously stated that
Delgado’s term of imprisonment was to be “13 years and seven
months.” It then attempted to convert that term into months,
but it admitted that its conversion might be mathematically
erroneous; and as it turns out, it was erroneous, and the error
was repeated in the written judgment. “If there should be a
variance between the oral pronouncement of sentence and the
sentence as set forth in the written judgment, the oral
sentence prevails.” 3 Charles Alan Wright, Federal Practice
and Procedure Crim. 2d § 534 (1982). The mathematical error
may be corrected pursuant to a motion under Rule 36. Id.
The district court’s denial of the Fed. R. Crim. P.
36 motion is reversed, the judgment in this matter is vacated,
and the case is remanded to the district court with
instructions to amend the judgment to show that Delgado is to
be imprisoned for a term of 163 months.
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