Friday, August 14, 2015

Match it up

From David Freund -- 


In the last nine months, we have discussed conditions of supervised release several times (revisit the previous posts here.) Today the Tenth Circuit reminds us that it is important to read the Judgment in a Criminal Case, and compare it with the sentence pronounced from the bench, including the conditions of supervised release. Victor Hernandez was sentenced for a drug trafficking crime. In addition to a term of imprisonment, the court ordered Mr. Hernandez to serve four years supervised release. Because Mr. Hernandez was not a United States citizen, the district court imposed only one condition of supervised release:

[T]he only condition that I’m going to impose on you, sir, is that you not commit any other federal, state or local crimes because the chances are very high that you’ll be deported. If you then return illegally to the United States, that will be committing another crime; and in all probability, you’ll be brought back before a judge, and as I told you when you plead guilty, you could be sentenced to additional time in this case.
However, the written judgement included multiple other conditions of supervision, which directly conflicted with the sentence announced from the bench. Mr. Hernandez appealed, arguing the sentenced imposed in open court controlled over the conflicting written judgment. The government conceded error. The Tenth Circuit agreed with the parties and remanded the case to the district court with instructions to conform the written judgment to the sentence orally pronounced in court.


So, not only is it important to compare the written judgment to the sentence pronounced from the bench, you must do it in a timely manner. Federal Rule of Criminal Procedure 36 allows the court to correct clerical errors in a judgment. While Rule 36 allows the court to correct a clerical error at any time, what happens if the court refuses to correct the error? You are left with filing a notice of appeal (unless the plea agreement contained an appeal waiver), which must be filed  within 14 days of the entry of the judgement on the docket. See Federal Rule of Appellate Procedure 4(b). So make sure it all matches up.

Have a good weekend.

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