United States v. Ochoa, No. 14-10124
(10-22-15)(Rawlinson with Murguia; Navarro, D.J., dissenting).
This is an alarming procedural sentencing case. The 9th holds that sentencing is not
completed with an oral pronouncement of sentencing. Rather, Fed. R. Crim. P. 35 does not bar the
judge from altering the sentence in the course of the proceeding.
This case involved a Supervised Release violation. The court chastised the defendant for various
violations, and sentenced him to a year and a day and notified him of his right
to appeal. The court then said
"Anything else?" And counsel sought to clarify whether Supervised Release was
terminated. The court observed the
defendant apparently laughing. The court
stated that the defendant "just talked himself" into a higher
sentence, and sentenced him to the max Supervised Release term of two years, twice his original
sentence. Counsel did not object. Defendant appealed.
18 U.S.C. ยง 3582(c) states that a court may not
modify a term of imprisonment once it has been imposed (except by statute or
Rule 35). Rule 35 goes on to read that a
sentence can be corrected within 14 days for a technical or arithmetic or clear
error. "Sentencing" is defined
as "the oral announcement of sentence." Fed. R. Crim. P. 35(a) and (c).
Seems pretty clear.
The court gave an oral sentence and then changed it. The 9th finds though that so long as the
hearing is unbroken, or ongoing, a sentence can be changed and altered and
increased.
The 9th looks
to other circuits, most notably the 5th.
The 5th establishes "this course of the same proceeding." The 1st and 10th also supports this
reading. The reasoning, adopted by the
9th, is the concern that a rigid rule as to the oral pronouncement would
deprive the court of flexibility during evolving circumstances. Laughter signaled to the court that the defendant
was uncooperative and disinterested.
This was an evolving circumstance.
The 9th did say this could allow a court after pronouncement to also
reduce a sentence if there was mitigation that was presented.
Dissenting, Navarro decries this "draconian"
decision of the sentencing court to double the sentence solely based on a
perception the defendant was laughing.
The dissent calls the trial court's decree as "injudicious"
and runs counter to the unambiguous language of Rule 35 and the express limitation
of statute.
The decision is here:
United States v. Eyraud, No. 14-50261
(10-22-15)(Trott with O'Scannlain and Bybee).
The 9th affirmed restitution as to the lawyers' fees
incurred by a corporation in investigating fraud. The defendant was in payroll and embezzled to
the tune of about $265,000. Auditors
found it, after some time, and the defendant confessed, was charged, and
pled. The corporation then got about
$425,000 in restitution, including loss, tax issues, forensic auditing, and
lawyers' fees. The appeal challenged
legal restitution. The 9th found it was proper, not unreasonable, and that due
process was not violated by failure to see the original invoices but only
summaries.
The decision is here:
posted by Jon Sands at 10/23/2015 12:24:00 PM
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