UNITED STATES v. LOZANO (2021)

United States Court of Appeals, Ninth Circuit.2021-01-19No. Nos. 19-50285, 19-50286

Summary · law.co

Holding. The district court's order clarifying the judgment to reflect consecutive sentences was affirmed because the corrected judgment merely conformed the written order to the oral pronouncement made at sentencing, which the record showed was unambiguously stated multiple times.

Cynthia Lozano appealed a district court order that clarified her judgment to reflect that her two sentences were to run consecutively. Lozano argued that adding the consecutive-sentence language was a judicial error requiring correction within fourteen days under Federal Rule of Criminal Procedure 35, rather than a permissible clerical correction under Rule 36. The appellate court disagreed, finding that the district court's oral pronouncement at sentencing unambiguously stated at least four times that the sentences would run consecutively for a total of 175 months, even though the judge misspoke and corrected himself during the hearing. The written judgment was therefore properly clarified to conform to what the judge had actually pronounced, which is the legally binding sentence. Lozano also raised an alternative argument that the consecutive-sentence calculation violated the Sentencing Guidelines, but the court rejected this because she had voluntarily dismissed her prior appeal of her convictions and sentencing in 2018 and had not established that the amended judgment revised her legal obligations.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether omitting consecutive-sentence language from a judgment constitutes clerical error under Rule 36 or judicial error under Rule 35
Whether an oral pronouncement at sentencing or a written judgment controls the legal sentence
Whether an amended judgment that clarifies prior oral pronouncements revises legal rights or obligations for purposes of reopening appeal deadlines

Procedural posture

Lozano appealed the district court's grant of the government's motion to clarify the judgment orders regarding her sentences.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Cynthia Lozano appeals the district courts order granting the governments Motion to Clarify Judgment Orders.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Lozano argues that the judgments’ omission that her two sentences were to run consecutively is not a clerical error under Federal Rule of Criminal Procedure 36, but a judicial error under Rule 35 that had to be corrected within fourteen days after sentencing. See Fed. R. Crim. P. 35(a).

“The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant.” United States v. Munoz–Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). “A change made under Fed. R. Crim. P. 36 can do no more than conform the sentence to the term which the record indicates was intended.” United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984).

Here, the district court did that and no more by including in the corrected judgments that Lozanos sentences were to be served consecutively. Although the district judge misspoke and corrected himself several times about the individual sentences, the record unambiguously indicates that he clarified no less than four times that the sentences were to run consecutively or be a total of 175 months.

Lozano argues in the alternative that the imposition of consecutive sentences resulted from an incorrect calculation of the Sentencing Guidelines. However, as the government notes, Lozano voluntarily dismissed her appeal of her convictions and sentencing in 2018. Lozano counters that the period for filing an appeal begins anew when “a district court enters an amended judgment that revises legal rights or obligations,” “even where the appeal concerns a different matter from that revised by the district court.” See United States v. Doe, 374 F.3d 851, 853–54 (9th Cir. 2004).

However, as Doe makes clear, the amended judgment must “revise[ ] legal rights or obligations.” Id. Further, “[i]t is the words pronounced by the judge at sentencing, not the words reduced to writing in the judges Judgment/Commitment Order, that constitute the legal sentence.” United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988). Here, the unambiguous sentences pronounced at the sentencing hearing constitute Lozanos legal obligations, and the corrected judgments did not revise those obligations. The district courts clarification of Lozanos judgments is AFFIRMED.

FOOTNOTES

. Because the parties are familiar with the facts, we restate only those necessary to explain our decision.