August 17, 2019

Tenth Circuit: District Court Lacked Jurisdiction to Modify Defendant’s Sentence Under Fed. R. Crim. P. 35(a)

The Tenth Circuit published its opinion in United States v. Luna-Acosta on Friday, May 3, 2013.

In August 2011, the government filed an information charging Adrian Luna-Acosta with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b). He entered a plea agreement under which the government agreed to a downward departure of his offense level for the purposes of sentencing. The resulting range was thirty-three to forty-one months’ imprisonment. Luna-Acosta contended that when the government offered the plea agreement, it told him that it anticipated the range to be twelve to eighteen months’ imprisonment.

Defense counsel raised this issue at sentencing, but the court stated it nevertheless would sentence Luna-Acosta to the higher range. Defense counsel also raised the issue that new sentencing guidelines would take effect on November 1, 2011, regarding supervised release on this offense. The court agreed and continued the hearing. At the next sentencing hearing on November 16, the court sentenced Luna-Acosta to the lower range of twelve months imprisonment.

More than five months later, the district court reversed course. Without warning to either party, the district court entered a written judgment imposing a sentence of thirty-three months’ imprisonment without supervised release. The court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. Luna-Acosta appealed.

On appeal, Luna-Acosta argued that the district court lacked jurisdiction under Fed. R. Crim. P 35(a) to modify his twelve-month sentence.

Under Fed. R. Crim. P. 35(a), a district court “may correct a sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin 14 days after sentencing.” The rule defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). This 14-day time limit is jurisdictional.

The pivotal issue on appeal was when the “oral announcement” of the sentence occurred for purposes of Rule 35. Once the oral announcement of the sentence becomes final, it can only be modified within the 14 days following sentencing, and even then only in limited circumstances.

In this case, these “sentencings” resulted in three different outcomes: on October 19, 2011 (open court): 33 months’ imprisonment, 2 years’ supervised release; on November 16, 2011 (open court): 12 months’ imprisonment, no supervised release; and on April 26, 2012 (written judgment): 33 months’ imprisonment, no supervised release.

The Tenth Circuit adopted the standard of the Fifth Circuit, where a sentence is not final—and Rule 35(a) does not apply—when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).

In Meza, the Fifth Circuit concluded that the district court’s change of a sentence immediately after it first announced a sentence was not a modification that must comply with Rule 35(a). The court refused to impose the “draconian rule” that “the district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court.”

Applying this “formal break” standard to the case at bar, the Tenth Circuit concluded that the sentence was not final until the end of the second hearing held on November 16, 2011. Most important was the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence.

Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26.

Accordingly, the Tenth Circuit REVERSED and REMANDED with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.

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