PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-5137
ROBERT JORDAN FIELDS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Margaret B. Seymour, District Judge.
(1:05-cr-01226-MBS-1)
Argued: December 5, 2008
Decided: January 14, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Michael and Judge King
joined.
COUNSEL
ARGUED: Parks Nolan Small, Federal Public Defender,
Columbia, South Carolina, for Appellant. Dean A. Eichelber-
ger, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: Kevin
2 UNITED STATES v. FIELDS
F. McDonald, Acting United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Car-
olina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
On remand for resentencing, the district court sentenced
Robert Jordan Fields to a twelve-month term of imprisonment
but declined to impose the fine that it had imposed with
Fields’s original sentence. Four days later, the court did
impose the fine, stating that it had intended to do so when
resentencing Fields but because of an oversight had not. Fed.
R. Crim. P. 35(a) requires that we vacate and remand with
instructions to impose the sentence ordered at the first resen-
tencing hearing: twelve months of imprisonment and no fine.
I.
In 2006, a jury convicted Fields of making a false loan and
credit application. At his initial sentencing, the district court
sentenced Fields to twelve months of imprisonment. In addi-
tion, although it adopted the factual findings in the presen-
tence report (PSR), which, inter alia, stated that it did "not
appear that the defendant has the ability to pay a fine," the
district court imposed a $2000 fine.
Fields’s initial appeal focused on his term of imprisonment,
but he framed the issue on appeal quite broadly, asking
whether the district court erred "when it used the 2000 version
of the United States Sentencing Guidelines to compute the
guideline sentence rather than the less punitive present 2006
version . . . ?" Brief of Appellant at 2, United States v. Fields
(Fields I), 252 F. App’x 556 (4th Cir. 2007) (No. 07-4390).
We reversed, finding it unclear whether the district court
UNITED STATES v. FIELDS 3
incorrectly chose to apply the 2000 version of the U.S. Sen-
tencing Guidelines Manual. Our mandate explained: "[W]e
vacate the sentence and remand this case for resentencing. On
remand, the district court should calculate Fields’ guideline
range using the 2006 Guidelines Manual." Fields I, 252 F.
App’x at 558. We concluded that if the 2006 version resulted
in a guideline range that was "the same or more favorable to
Fields," then the district court should apply that version and
not the 2000 version. Id.
At the first resentencing after remand, the district court
found that the 2006 version did result in a decrease of one
offense level, which yielded a lower advisory guidelines
range. The district court applied it but still imposed a twelve-
month sentence. The court then stated, "Again it does not
appear [Fields] has the ability to pay a fine[;] the fine is
waived" (emphasis added). The Government did not object to
the court’s decision to waive the fine.
Four days later the district court convened a second resen-
tencing hearing. The Government opened that hearing by
arguing that the district court’s failure to re-impose a fine at
the first resentencing constituted "clear error" within the
meaning of Fed. R. Crim. P. 35(a). After Fields objected to
the district court revisiting the fine, the district court
responded that it knew "exactly what [it] had in mind" at the
first resentencing hearing and that it had "intended to impose
a fine" at that time. Once more adopting the factual findings
in the updated PSR (which again found no ability to pay a
fine), the court then imposed a $2000 fine. Fields timely
appealed, challenging the imposition of the fine.
II.
The Government initially contends that the mandate rule
"bars consideration" of the imposition of the fine. Specifi-
cally, the Government contends that our mandate remanding
the case prevented the district court from deleting the fine on
4 UNITED STATES v. FIELDS
resentencing. With limited exceptions not applicable here, the
mandate rule "forecloses litigation on remand of issues
decided by the district court but foregone on appeal or other-
wise waived." United States v. Aramony, 166 F.3d 655, 662
(4th Cir. 1999).
The breadth of our mandate in Fields I fatally undermines
the Government’s theory. As noted above, Fields framed the
issue on appeal broadly. Moreover, we did not limit our
remand order to a specific issue. Cf. United States v. Bell, 5
F.3d 64, 65–67 (4th Cir. 1993) (remand instructed district
court to sentence defendant within 87-108 month guidelines
range). Instead, we instructed the district court simply to
apply the correct version of the Guidelines Manual, which
itself determines the range of any fine.1
Thus, our remand order in Fields I—directing the district
court to apply the 2006 Guidelines Manual—essentially man-
dated that the court conduct a de novo resentencing. See Doe
v. Chao, 511 F.3d 461, 466 (4th Cir. 2007) (using "the scope
of the remand" to determine the reach of the mandate rule).
The mandate rule therefore does not bar consideration of the
issue presented in this appeal. Accordingly, we turn to that
issue.
III.
Fed. R. Crim. P. 35(a) provides the only authority for the
district court to correct or change Fields’s sentence. 18 U.S.C.
§ 3582(b), (c) (2006); see also United States v. Fraley, 988
F.2d 4, 6 (4th Cir. 1993). Fields argues that the district court
exceeded its authority under that rule when it convened a sec-
1
For example, under the 2000 Manual’s applicable offense level of ten,
Fields’s advisory guidelines fine range was $2000–$20,000. U.S. Sentenc-
ing Guidelines Manual § 5E1.2(c)(3) (2000). In contrast, the 2006 Manu-
al’s offense level of nine leads to an advisory guidelines fine range of
$1,000–$10,000. Id. § 5E1.2(c)(3) (2006).
UNITED STATES v. FIELDS 5
ond resentencing hearing to amend its order and impose the
fine. Rule 35(a) limits a district court’s ability to amend a sen-
tence; the court can do so only "[w]ithin 7 days after sentenc-
ing, [to] correct a sentence that resulted from arithmetical,
technical, or other clear error." Fed. R. Crim. P. 35(a).
The Government does not assert that the district court com-
mitted an arithmetical or technical error at the initial resen-
tencing. Thus, unless the Government can demonstrate that
the district court committed a "clear error" within the meaning
of Rule 35(a) when it refused to impose a fine at the first
resentencing, Fields’s challenge to the fine must prevail.
Every relevant authority agrees that the scope of "clear
error" correctable under Rule 35(a) is extremely narrow. See,
e.g., Fed. R. Crim. P. 35(a) advisory committee’s note ("The
authority to correct a sentence under [Rule 35(a)] is intended
to be very narrow and to extend only to . . . errors which
would almost certainly result in a remand of the case . . . .")
(1991 Amendments); United States v. Layman, 116 F.3d 105,
108 (4th Cir. 1997); Fraley, 988 F.2d at 6–7. Although courts
take different approaches to Rule 35(a), all essentially agree
that "clear error" under the Rule requires some reversible
error at the initial sentencing (or here, the initial resentencing)
hearing. See, e.g., United States v. Ward, 171 F.3d 188, 191
(4th Cir. 1999); see also United States v. Houston, 529 F.3d
743, 749 (6th Cir. 2008); United States v. Lett, 483 F.3d 782,
788 (11th Cir. 2007). The Government can point to no revers-
ible error that occurred at Fields’s initial resentencing. There
is none. Neither the Guidelines nor any statute requires impo-
sition of a fine. Indeed, the district court specifically found
that Fields had no ability to pay a fine. Thus, had the district
court never reconvened to impose a fine, the Government
would have had no basis for appealing the failure to impose
a fine at the initial resentencing.
Relying on the district court’s statements at the second
resentencing hearing, however, the Government asserts that
6 UNITED STATES v. FIELDS
the district court’s intent to impose a fine remained static
throughout. This may be so. We certainly do not question the
good faith of the able district judge,2 but Congress limited the
reach of Rule 35(a) because it wanted to promote openness
and finality in sentencing. Layman, 116 F.3d at 108–09;
Fraley, 988 F.2d at 7. Had the district court expressly stated
at the first resentencing hearing that it intended to impose the
fine and then failed to do so, this would be another case, simi-
lar to United States v. Cook, 890 F.2d 672, 675 (4th Cir.
1989). But cases like Cook explicitly hold that a district court
may only correct an "acknowledged and obvious mistake." Id.
Given the Government’s failure to object to the omission of
the fine at the first resentencing, we refuse to search for an
intent that was not obvious to anyone at that time. See Fraley,
988 F.2d at 7 ("When the district court unequivocally states
a sentence and then imposes it, and the sentence is not the
product of error, the district court has no authority to alter that
sentence.").
IV.
We therefore vacate and remand with instructions that the
district court reinstate the sentence imposed at the first resen-
tencing: twelve months of imprisonment and no fine.
VACATED AND REMANDED
2
To the contrary, we emphasize that we imply not the slightest criticism
of the district judge, who conducted all of Fields’s hearings in a thorough
and conscientious manner. Failure to impose a fine may well have been
an understandable oversight during a busy schedule. But it is not an over-
sight that is correctable under the narrow scope of Rule 35(a).