UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 99-31260
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ARTHUR BOOKER, III,
Defendant - Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
Dist. Ct. No. 99-CR-17-3-M
November 29, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
The government appeals the downward departure in sentencing entered by the district court
more than seven days after its original sentencing of Arthur Booker, III. Agreeing with the
government that the district court lacked jurisdiction to modify Booker’s sentence, we now vacate
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the district court’s judgment and remand for reinstatement of the district court’s original sentence.
Arthur Booker, III (“Booker”) pled guilty to one count of conspiracy to interfere with
commerce by robbery, in violation of 18 U.S.C. § 1951, in connection with the robbery of an armored
truck. The district court judge sentenced Booker to 33 months imprisonment on October 6, 1999.
Six days after ordering this sentence, on October 12, 1999, the district court sua sponte entered a
“Clarification by the Court” (“Clarification Order”). In that order, the district court notified the
parties that it would entertain briefs and hear oral argument on its ability to enter a downward
departure for Booker. On October 25, 1999, the court abrogated its original sentence. The district
court found that it had erred in its earlier “determination that [it] was obliged to follow the guidelines
figure.” The district concluded that “the cumulative effect of Arthur Booker’s employment and
personal history, the circumstances and extremely speculative nature of this conspiracy, his minimal
participation and his manifest intent to withdraw require[d] the Court to sentence the defendant below
the minimum guidelines.” Thus, the district court imposed a sentence of 20 months imprisonment
to correct the error in the original sentence pursuant to Fed. R. Crim. P. 35(c).
Federal Rule of Criminal Procedure 35(c) provides that the trial court “acting within 7 days
after the imposition of a sentence, may correct a sentence that was imposed as a result of arithmetical,
technical, or other clear error.” We have previously held that the requirement to act within seven
days is jurisdictional in nature. See United States v. Lopez, 26 F.3d 512, 520 (5th Cir. 1994)
(resentencing “occurred outside the seven-day window and the district court lacked jurisdiction to
act pursuant to Rule 35(c).”); United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997)
(concluding that where modification of sentence occurred fifty days after original sentence, trial court
lacked the jurisdiction to modify the sentence); see also United States v. Blackwell, 81 F.3d 945 (10th
-2-
Cir. 1996)(district court lacked jurisdiction to resentence defendant seventy-two days after imposition
of original sentence). We review de novo whether the district court had jurisdiction to resentence
the defendant. See United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998); United States v.
Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997).
In its resentencing order, the district court did not address its jurisdiction under Fed. R. Crim.
P. 35(c). Instead, it addressed whether the error it perceived in the original sentencing order was the
type of error for which the rule allowed the trial court to enter a correction. Because the seven day
time period is a jurisdictional requirement, we must address whether the district court acted within
that time period before determining whether the error was the sort of error for which the rule imparts
to the trial court the power of correction
We find that the district court lacked jurisdiction to enter this correction. First, the district
court’s correction of the sentence fell outside of the seven day period. Almost three weeks passed
before the district court pronounced its oral correction of the original sentence.
Second, the district court’s entry of the Clarification Order did not constitute sufficient action
under Rule 35(c) to grant the district court jurisdiction. Booker argues that the district court’s entry
of the Clarification Order six days after issuing its original sentence satisfies the requirement to act
within seven days. For this contention, Booker relies on United States v. Carmouche, 138 F.3d 1014
(5th Cir. 1998). This reliance is misplaced. In Carmouche, we addressed only the tolling of the time
for filing a notice of appeal, not the time in which the trial court may correct a clearly erroneous
sentence. See 138 F.3d at 1016 (holding that a defendant’s motion to correct the sentence made
within seven days tolled the time for filing a notice of appeal until the district court denied the motion
60 days later). We did not address the district court’s jurisdiction to make the correction.
-3-
Moreover, we have held that resentencing must occur within the seven day window. See
Bridges, 116 F.3d at 1112 (stating that “such modifications must occur within the seven day window
immediately following the imposition of the original sentence”); see also Gonzalez, 163 F.3d at 263-
64 (assuming in determining whether court had jurisdiction to act that modification of sentence was
action that needed to occur within seven days). Therefore, because the district court did not
resentence Booker within seven days of the original sentence, it was without jurisdiction to modify
his sentence.
Because we find that the district court lacked jurisdiction, we need not address whether the
alleged error in sentencing was the type of error for which Rule 35 provides the trial court with the
power to correct.
For the foregoing reasons, we VACATE the district court’s judgment and REMAND for
reinstatement of the original sentence.
-4-