United States Court of Appeals
For the First Circuit
No. 07-2604
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. RICCIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Senior U.S. District Judge]
Before
Howard and Stahl, Circuit Judges,
and Besosa, District Judge.*
Kathleen J. Hill for appellant.
Donald C. Lockhart, Assistant United States Attorney,
with whom Robert Clark Corrente, United States Attorney, and
Zechariah Chafee, Assistant United States Attorney, were on
brief, for appellee.
ORDER OF COURT
Entered: June 3, 2009
*
Of the District of Puerto Rico, sitting by designation.
Besosa, District Judge. Appellant John L. Riccio was
convicted of violating 18 U.S.C. § 1001 by submitting a false
statement on a background check form (SF-86) to his former
employer, the Transportation Security Administration (TSA).
Mr. Riccio was later sentenced to a three-month prison term, with
two years of supervised release. In an earlier opinion, we
affirmed the judgment of the district court. United States v.
Riccio, 529 F.3d 40 (1st Cir. 2008).
Appellant filed a Petition for Rehearing and Motion for
Clarification requesting that we amend our opinion because the
government had conceded that the trial judge’s oral pronouncement
that Mr. Riccio continue his current mental health counseling,
which was on an outpatient basis, as a condition of release would
“control over the written condition which included in-patient
treatment as well.”1 The government’s response to the petition
sings a somewhat different tune. Basing its argument on this
court’s opinion, the government stated that because there was no
material conflict between the oral sentence and the written
judgment, the government’s statement at oral argument does not
provide a basis for clarifying our decision.
Having reviewed the audio-recording of the argument held
on March 4, 2008, we conclude that the government made the
1
Fed. R. App. P. 40(a)(4) provides that if a petition for
rehearing is granted, the court may “make a final disposition of
the case without reargument.”
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concession the defendant argues for at oral argument. The
government said the following:
“We concede that if the defense is willing to live with
the oral condition as it was pronounced at sentencing
then we are willing to live with it as well. And as
Judge Stahl has pointed out, normally the oral condition
controls anyway. I had thought there was a broader
attack on the condition, but if the defense is
withdrawing the other facets of its attack. . .”
While we have recently held, in a somewhat different
context, that “[t]his court is not bound by a party’s concessions,”
United States v. Borrero-Acevedo, 533 F.3d 11, 15 n. 3 (1st Cir.
2008) (citing United States v. Mescual Cruz, 387 F.3d 1, 8 n. 2
(1st Cir. 2004)), w4e have also held that an oral sentence prevails
over a written judgment if there is a material conflict between the
two. See United States v. Sepúlveda-Contreras, 466 F.3d 166, 169
(1st Cir. 2006). Outpatient mental treatment is sufficiently
materially different from inpatient mental treatment for us to
require the district court make sure that its written sentencing
judgment is the same as its oral sentencing judgment.
Appellant’s Motion for Clarification is granted and our
original decision is modified to reflect the government’s
concession at oral argument. We remand the case to the district
court so that the written judgment may be corrected to conform to
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the judge’s oral pronouncement at the sentencing hearing.
SO ORDERED.
By the Court:
/s/ Richard Cushing Donovan, Clerk
cc: Hon. Ernest C. Torres, Mr. David DiMarzio, Clerk, United States
District Court for the District of Rhode Island, Mr. Lockhart, Ms.
Hill, & Mr. Chafee..
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