United States v. Hankton

875 F.3d 786

UNITED STATES of America, Plaintiff-Appellee

v.Thomas HANKTON, also known as Squirt Hankton, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Derrick Smothers, also known as Dump Smothers, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Terrell Smothers, Defendant-Appellant

No. 16-31126

C/w 16-31144, Consolidated with 16-31152

United States Court of Appeals, Fifth Circuit.

Filed November 16, 2017

Jeffrey Ryan McLaren, Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Jeffrey Keith Sandman, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.

William Sothern, Esq., Law Office of William M. Sothern, New Orleans, LA, for Defendant-Appellant THOMAS HANKTON.

Nisha Sandhu, New Orleans, LA, for Defendant-Appellant DERRICK SMOTHERS.

Peter Franklin, Theis, Greater New Orleans Fair Housing Action Center, New Orleans, LA, for Defendant-Appellant TERRELL SMOTHERS.

Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

When Derrick Smothers, Terrell Smothers,¹ and Thomas Hankton (collectively, "Defendants") were originally sentenced, each received a sentence reduction for previously serving time on related state charges. Thirteen days after sentencing, the Government requested that the district court "correct" their sentences under Federal Rule of Criminal Procedure 35(a) to eliminate those reductions. Because Rule 35(a) may be invoked only "[w]ithin 14 days after sentencing," the district court had only a day to consider an issue that one Bureau of Prisons ("BOP") attorney labeled "probably the single most confusing and least understood federal sentencing issue."² Relying on errant analysis in the Government's briefing, the district court concluded the sentences were "clear error" under Rule 35(a) and "corrected" them to remove the reductions for time served.

We hold that Defendants' initial sentences were not "clear error" correctable under Rule 35(a). Consequently, we VACATE the order correcting their sentences and REINSTATE the original judgments. We also REMAND for the limited purpose of directing the district court to conform Terrell's written judgment to the oral pronouncement of his sentence.

I. Background

Defendants all pleaded guilty to being involved in a criminal organization as well as various other crimes. The exact details of the conspiracy and the nature of the crimes charged are mostly irrelevant to the legal issue before us now. Instead, these appeals center on the fact that each Defendant previously served time in prison for convictions relating to their federal convictions, a fact the Government does not contest. At sentencing, the district court reduced each of Defendants' sentences to reflect their previous time served.

The Government objected to only Hankton's reduction and on only one narrow ground. Hankton had been convicted on three separate counts. The Government contended that his previous time served should apply to only two of the three counts of conviction. The district court sustained the objection, and Hankton does not appeal that ruling. The Government made no other objections at the sentencing hearing to Defendants receiving reductions for previous time served.

Thirteen days later, the Government backtracked. It filed a motion to "correct" Defendants' sentences under Federal Rule of Criminal Procedure 35(a). The government argued that under United States v. Wilson , 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992), "the Attorney General has sole responsibility for calculating the term of imprisonment, including any credit for prior custody." It also argued that Defendants were ineligible for sentencing adjustments under United States Sentencing Guideline Manual ("U.S.S.G.") § 5G1.3(b) ( U.S. SENTENCING COMM'N 2016), because their terms were not undischarged.³ Hankton's sentence, the Government argued, also violated his plea agreement which included a stipulated sentence under Federal Rule of Criminal Procedure Rule 11(c)(1)(C).

Because Rule 35(a) requires that any correction occur within 14 days, the district court and Defendants had to work at breakneck speed. The district court ordered Defendants and the United States Office of Probation and Pretrial Services to submit any responses to the Government's motion by noon the next day. Terrell, Hankton, and Probation all submitted responses, and the Government replied with just hours left on the Rule 35(a) deadline.

Under this extreme time pressure, the district court granted the Government's motion. It concluded that § 5G1.3(b) did not apply "because [the recommendation] seeks credit for a fully discharged conviction. U.S.S.G. § 5G1.3(b) provides that a district court may effect a downward departure for an undischarged sentence but does not provide for a downward departure for a discharged sentence." See United States v. Hankton , No. 2:12-cr-1-7, slip op. at 3 (E.D. La. Oct. 26, 2016) (alteration in original) (quoting United States v. Carpenter , 359 Fed.Appx. 553, 557–58 (6th Cir. 2009) ). The district court noted that under binding precedent "only the Attorney General, acting through the Bureau of Prisons, has authority to grant credit for time served under [ 18 U.S.C. § 3585 ]." Id. at 4 (citing Wilson , 503 U.S. at 334–35, 112 S.Ct. 1351 ). As a result, the court amended Defendants' sentences to remove any reference to "credit for time served."

Defendants appealed, each challenging the district court's "correction" of his sentence.

II. Standard of Review

"Whether the district court had authority to resentence a defendant pursuant to Rule 35(a) is a question of law that we review de novo." United States v. Ross , 557 F.3d 237, 239 (5th Cir. 2009).

III. Discussion

A. Rule 35(a) Standard

We first examine a threshold issue in this case: what types of errors may be corrected through Federal Rule of Criminal Procedure 35(a) ? Rule 35(a) is short: "Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." FED. R. CRIM. P. 35(a). For a court to invoke Rule 35(a), the original sentence must suffer from some error that is "obvious." See United States v. Lopez , 26 F.3d 512, 519–20 (5th Cir. 1994) (per curiam).⁴ The subdivision "is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence." Id. at 520 (quoting FED. R. CRIM. P. 35 advisory committee's note to 1991 amendments); see also United States v. Bridges , 116 F.3d 1110, 1112–13 (5th Cir. 1997) (reversing the district court's modification of a sentence when it stemmed from "disagreement with the Sentencing Guidelines"); Lopez , 26 F.3d at 520 ("The judge stated at resentencing that it was a ‘mistake’ to have credited Lopez with a downward departure based on the erroneous assumption that Lopez would cooperate and testify for the government. But this is not an error within the contemplation of Rule 35 [ (a) ]."). The rule extends to "errors which would almost certainly result in a remand of the case to the trial court for further action...." Lopez , 26 F.3d at 520 (quoting FED. R. CRIM. P. 35 advisory committee's note to 1991 amendments). Consequently, we have affirmed corrections under Rule 35(a) for only the most uncontroversial errors. See, e.g. , United States v. Sanchez-Villarreal , 857 F.3d 714, 717–18 (5th Cir. 2017) (affirming because the district court's entire pronouncement indicated the defendant would receive a sentence at the high end of the Guidelines range, but the district court "misspoke" and set a term of imprisonment significantly below the Guidelines range); United States v. Olarte-Rojas , 820 F.3d 798, 803–06 (5th Cir. 2016) (affirming a correction when a district court mistakenly used the wrong number in a Guidelines provision), cert. denied , ––– U.S. ––––, 137 S.Ct. 232, 196 L.Ed.2d 179 (2016).

Beyond these established but general principles, the boundaries of Rule 35(a), including whether "legal errors" even fall within its reach, are less clear. See Ross , 557 F.3d at 239 (declining "to demarcate the outer boundaries of ‘other clear error’ within the meaning of Rule 35(a)"). Various courts have suggested that the "clear error" standard should mirror the "plain error" standard,⁵ although no court of appeals has explicitly adopted that standard. See, e.g. , Ross , 557 F.3d at 242 ("The argument could be made that since reversal of sentences on appeal for other than procedural error now rests on unreasonableness, ‘clear error’ in Rule 35(a) can now encompass essentially the equivalent of ‘plain error.’ "). Given that the error correction effort occurs before the original trial court (albeit late), one could argue that only the first two prongs should apply (an error that is "obvious," i.e., not subject to reasonable dispute).

We conclude that it is unnecessary to fully resolve the outer boundaries of Rule 35(a) in this case. Under any of the above tests, none of the Government's justifications for the Rule 35(a) order come close to the rule's reach. First, the Government's primary argument contradicts the accepted principle that a district court may not use Rule 35(a)"to reconsider the application or interpretation of the sentencing guidelines." Lopez , 26 F.3d at 520 (quoting FED. R. CRIM. P. 35 advisory committee's note to 1991 amendments). Second, even using the standard most favorable to the Government here, any alleged errors were not "clear." Assuming arguendo that a district court can correct legal errors under Rule 35(a), those errors would have to at least satisfy the second prong of plain error review. But, as discussed below, the Government's position rests on arguments to which this court has not spoken and which have divided other circuit courts. Such "errors" are not "clear." Cf. United States v. Salinas , 480...