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Oct. 22 — A court that amended its sentence to the maximum possible after the criminal defendant allegedly laughed at the court during sentencing proceedings may do so because the initial sentence was not yet final, the U.S. Court of Appeals for the Ninth Circuit held Oct. 22.
The district court had jurisdiction under Federal Rule of Criminal Procedure 35 to increase the sentence during the same hearing because there was no formal break in the proceedings, Judge Johnnie B. Rawlinson wrote for the panel on an issue of first impression.
Rule 35 allows a court to correct an “arithmetic, technical or other clear error” within 14 days after sentencing, and defines sentencing as “the oral announcement of sentence.”
Ramon Ochoa received a 12-month sentence for violating his supervised release during a revocation hearing.
Judge Lawrence J. O'Neill of the U.S. District Court for the Eastern District of California said he observed Ochoa laughing after he asked if there were any other issues.
The judge said to Ochoa that he had just lectured him about respect for the judicial system “and now you laugh at the court.”
Ochoa denied this but the judge imposed the maximum sentence of two years' imprisonment, saying that Ochoa “won't learn without giving the maximum,” according to the opinion.
Ochoa appealed, arguing that under 18 U.S.C. §3582(c) the district court lacked jurisdiction to increase his sentence. The statute says that a court may modify a sentence only as permitted by statute or Rule 35.
The court looked to other circuits for guidance on what constitutes a final sentence—a matter of first impression in the circuit.
The Fifth Circuit holds that when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished,” there is not a final sentence.
An example of a formal break is when a judge gavels a hearing as adjourned and a sentence is entered into the record, the Fifth Circuit said in United States v. Meza, 620 F.3d 505, 2010 BL 218841 (5th Cir. 2010).
However, when there is an “unbroken sequence of actions,” a court should construe “the totality of the events as one sentence,” the Fifth Circuit said.
Although Rule 35 defines sentencing as the “oral announcement,” nothing in the rule dictates that the first term of imprisonment a court utters is necessarily the final sentence.
The Tenth and First circuits have reached the same conclusion as the Fifth, the court said here.
If Rule 35 were intended to deprive courts of jurisdiction to alter a sentence during the proceeding, it would “strip district courts of flexibility to respond to evolving circumstances” during a hearing, the court said.
This would prevent courts from adjusting upwards, but also downwards, such as when a new piece of mitigating evidence is discovered, the Ninth Circuit said.
Judge Mary H. Murguia joined in the opinion.
Judge Gloria M. Navarro dissented, writing that Ochoa's two-year sentence was a “draconian decision” based on “a perception” that Ochoa was laughing at the court. Affirming the sentence “defies the unambiguous language of Rule 35” and the “express limitation” of §3582(c).
The U.S. Attorney's Office, Fresno, Calif., represented the plaintiff. Carlton F.Gunn of Pasadena, Calif., represented the defendant.
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