NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 22, 2009
Decided May 11, 2009
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐2761
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, Hammond Division.
v.
No. 2:05 CR 41‐04
ANSELMO ZEPEDA,
Defendant‐Appellant. Rudy Lozano,
Judge.
O R D E R
The transcript of Anselmo Zepeda’s sentencing hearing reflects that the district court
orally pronounced a 150‐month prison term. But the written judgment records the term as
210 months, and so Zepeda seeks a remand to conform the judgment to the shorter term
pronounced from the bench. The government agrees that a remand is in order, but only for
the purpose of giving Judge Lozano an opportunity to explain the discrepancy between the
written judgment and the oral pronouncement, which, the government insists, must have
been a slip of the tongue. We order a limited remand with instructions for the district court
to determine whether the discrepancy is the result of a transcription error and, if not, to
state its intention at sentencing.
No. 07‐2761 Page 2
Zepeda, a middleman in an interstate drug‐trafficking scheme, pleaded guilty to
conspiracy to distribute cocaine, see 21 U.S.C. §§ 846, 841(a)(1), and was sentenced in July
2007. With adjustments for possession of a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1),
leadership role, see id. § 3B1.1(c), and acceptance of responsibility, see id. § 3E1.1, Zepeda’s
total offense level was 37, which, combined with his criminal history category of I, resulted
in a guidelines range of 210 to 262 months’ imprisonment.
At sentencing Zepeda waived his objections to the guidelines calculations but argued
that his age (then 51), health conditions (diabetes and high blood pressure), responsibilities
to his two minor children, and lack of criminal record justified a below‐guidelines sentence
of 10 years, the statutory minimum. Judge Lozano engaged in lengthy discourse with
defense counsel concerning these arguments but implied that he was unpersuaded. Judge
Lozano then pronounced sentence with this explanation:
I have looked at this case and I have considered the quantity of drugs
involved, and I have considered the fact that this was done numerous times,
and I have considered your family ties, your health, and I have no reason to
believe that the Bureau of Prisons cannot treat your medical condition.
And I have considered the Guidelines and whether or not they are fair, and
also Congress’s intent and message to society as to their feelings, and I know
they believe this to be a very serious crime, otherwise, they would not put a
mandatory minimum.
I believe that the Guidelines in this case are fair and are reasonable
considering all of the factors in your life and in this crime that you’re here for
today. I have thought about the sentence that you should receive in this case,
and I have decided upon the following sentence, which I will read at this
time, but I’ll give counsel a final chance to make objections before your
sentence is finally imposed.
Pursuant to Title 18, United States Code, Section 3551 and 3553, as modified
by U.S. v. Booker and Fan Fan; and after having considered the arguments of
counsel, both orally and by way of Memorandum; and after having the
Presentence Investigation Report and the comments therein; and after having
considered all of the facts in this case and the information given to the Court;
after having considered the Guidelines and what would be a fair sentence
under the Guidelines, and also a fair sentence in general, it is the judgment of
the Court that the defendant, Anselmo Zepeda, is hereby committed to the
custody of the Bureau of Prisons to be imprisoned for a term of 150 months.
No. 07‐2761 Page 3
Judge Lozano never suggested that he had settled on a prison sentence five years
shorter than the low end of the guidelines range, nor did he offer justification for imposing a
below‐range sentence. Moments later, however, Judge Lozano gave this explanation:
The reasons for imposing the sentence are as follows. The Guideline range in
this case is 210 to 262 months. The Court is imposing a sentence at the bottom
end of the Guidelines because of what the Court determines to be a fair
sentence; an adequate deterrent; an adequate period for rehabilitation;
fulfillment of the Court’s duty to society; the quantity of drugs involved; and
the defendant’s history with regards to drugs.
Neither party asked for clarification of, what appears in the transcript to be, inconsistent
statements, and both waived rereading of the sentence even after the court had described
the sentence imposed as being at the bottom of the guidelines range. Judge Lozano never
repeated the precise term of imprisonment he had imposed. Four days later, however, the
district court issued its formal written judgment reporting the sentence as 210 months’
imprisonment.
Zepeda appealed his sentence, and his appointed counsel moved to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he could not discern a nonfrivolous issue to
pursue. In his Anders brief, however, counsel represented to this court that Zepeda had
been sentenced to the 150‐month term pronounced from the bench; counsel did not even
acknowledge that the written judgment memorializes a term of 210 months. An oral
pronouncement of sentence generally controls over a conflicting written one. See United
States v. McHugh, 528 F.3d 538, 539 (7th Cir. 2008). But the Bureau of Prisons implements
the written judgment, see U.S. Dep’t of Justice, Legal Resource Guide to the Federal Bureau of
Prisons 10, 12 (2008), and so we concluded that Zepeda had a nonfrivolous argument that
the judgment should be rewritten to reflect the oral pronouncement, and denied counsel’s
Anders motion. United States v. Zepeda, No. 07‐2761, 2008 WL 4523137 (7th Cir. Oct. 9, 2008).
It is well‐established that an oral pronouncement of sentence, if unambiguous,
controls over a conflicting written one. United States v. Alburay, 415 F.3d 782, 788 (7th Cir.
2005); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998); United States v. Daddino,
5 F.3d 262, 266 (7th Cir. 1993). Because this rule is grounded in the defendant’s
constitutional right to be physically present at sentencing, see United States v.
Sepúlveda‐Contreras, 466 F.3d 166, 169 (1st Cir. 2006); United States v. Bigelow, 462 F.3d 378,
380‐81 (5th Cir. 2006), it is applied strictly, even when the oral pronouncement was made in
error, see United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006); United States v. Buchanan,
59 F.3d 914, 917 (9th Cir. 1995). Other circuits have applied this principle to the benefit of
defendants notwithstanding strong evidence that the sentencing judge simply misspoke.
See United States v. Villano, 816 F.2d 1448, 1450‐53 (10th Cir. 1987) (en banc) (holding that
No. 07‐2761 Page 4
oral pronouncement making 2 of 3 sentences consecutive for a total of 8 years’
imprisonment controlled over written judgment making all sentences consecutive for a total
of 10 years’ imprisonment even though codefendants sentenced at the same time on
identical convictions received fully consecutive terms totaling 10 years with no apparent
reason for the discrepancy, and even though judge later insisted he misspoke); United States
v. Munoz‐Dela Rosa, 495 F.2d 253, 254‐56 (9th Cir. 1974) (holding that oral pronouncement
that new sentence for escape would run concurrently with existing term controlled over
written judgment making sentences consecutive despite district judge’s later insistence that
he never imposes a concurrent sentence for escape and defense counsel’s concession that
judge “probably” misspoke).
The sentence pronounced from the bench, however, controls only when it is
unambiguous, and so we must determine whether Judge Lozano’s oral pronouncement is
unequivocal. See Bonanno, 146 F.3d at 511; Daddino, 5 F.3d at 266; cf. United States v. Sawyer,
521 F.3d 792, 793 (7th Cir. 2008) (explaining that a judge’s oral statements regarding
restitution “are not enforceable when an unambiguous judgment provides otherwise”).
Zepeda argues that it is, because the number “150” is capable of only one interpretation.
True enough: standing alone, the words “150 months” have only one possible meaning. But
words that are clear in isolation may be ambiguous when a literal reading suggests an
irrational or absurd result. See Fenner v. United States Parole Commʹn, 251 F.3d 782, 786 (9th
Cir. 2001); Villano, 816 F.2d at 1453 n.7. Moments before saying “150 months,” Judge
Lozano had rejected all of Zepeda’s arguments for a below‐guidelines sentence and opined
that the guidelines range was “fair and reasonable.” And then moments after saying “150,”
Judge Lozano repeated that the guidelines range was 210 to 262 months and explained that
he was “imposing a sentence at the bottom end of the Guidelines” because a low‐end term
was fair and an adequate deterrent. A conclusion that Judge Lozano intended to say
“150”—a term 5 years less than the low end of the guidelines range—does not seem rational
in light of his accompanying comments.
Zepeda’s case resembles Munoz‐Dela Rosa, 495 F.2d at 254, and Villano, 816 F.2d at
1451, the two leading out‐of‐circuit decisions involving evidence of a verbal misstep by the
sentencing judge. In both cases, the oral pronouncement was deemed unambiguous, and
the Ninth and Tenth Circuits made clear in their decisions that the rule favoring oral
pronouncements may not be set aside to accommodate judicial blunders. Villano, 816 F.2d
at 1452‐53 (“[I]t is incumbent upon a sentencing judge to choose his words carefully so that
the defendant is aware of his sentence when he leaves the courtroom.”); Munoz Dela‐Rosa,
495 F.2d at 256 (explaining that interests of justice require strict adherence to rule that oral
pronouncement controls even though “judges are human and may misstate their
intention”). But these two decisions are distinguishable because, unlike Judge Lozano, the
sentencing judges did not undermine an otherwise‐unambiguous sentence by making other
statements calling the oral pronouncement into doubt. In Munoz‐Dela Rosa, the sentencing
No. 07‐2761 Page 5
judge simply said “concurrently” when he meant “consecutively”; it was his practice to
sentence defendants consecutively for escape, and defense counsel knew it. 495 F.2d at 254.
But unlike Judge Lozano, the sentencing court in Munoz‐Dela Rosa made no other comments
at the hearing to suggest that “concurrently” was a misstatement. Similarly, in Villano, the
sentencing judge botched the order in which he intended the defendant’s sentences to run;
he said Count Three would run concurrently with Count One when he meant to say it
would run concurrently with Count Two, resulting in an overall sentence for the defendant
two years shorter than those of his codefendants. 816 F.2d at 1451. But, contrary to Judge
Lozano, the court said nothing to make its pronouncement internally inconsistent. In light
of this distinction, Zepeda’s case presents a novel situation.
On the record before us, we could simply affirm the 210‐month term stated in the
judgment because it squares with Judge Lozano’s rejection of Zepeda’s arguments for a
below‐guidelines sentence, his comments that the guidelines were fair and reasonable in
this case, and his statement that he was imposing a sentence at the bottom end of the
guidelines. See Bonanno, 146 F.3d at 511 (“[W]hen an orally pronounced sentence is
ambiguous the judgment and commitment order is evidence which may be used to
determine the intended sentence.” (internal quotation marks and citation omitted)); see also
Bull, 214 F.3d at 1279; United States v. De La Pena‐Juarez, 214 F.3d 594, 601 (5th Cir. 2000);
United States v. Garcia, 37 F.3d 1359 (9th Cir. 1994). Nevertheless, in the interest of justice,
we order a limited remand.
On this limited remand, Judge Lozano should initially determine whether the
transcript of the sentencing hearing accurately reflects the term of imprisonment orally
pronounced. If the transcript incorrectly sets forth the term of imprisonment orally
imposed, the transcript of the sentencing should be corrected and the corrected transcript
should be sent to this court and made part of the record on appeal.
However, if the number “150ʺ appearing in the sentencing transcript was correctly
transcribed, then Judge Lozano should indicate whether he intended to impose a term of
150 months or whether that number was mistakenly uttered.
If Judge Lozano indicates that he misspoke, and intended to impose the 210‐month
sentence recorded in the written judgment, that 210‐month sentence will be affirmed upon
return of that finding to this court. On the other hand, if Judge Lozano reports that he
intended to sentence Zepeda to a term of imprisonment of 150 months, this case will be
remanded to the district court with instructions to amend the written judgment to reflect the
150‐month sentence.
LIMITED REMAND ORDERED IN ACCORDANCE HEREWITH.