Tuesday, November 1, 2016

The Spoken Word

What the judge said and what the judge wrote are not always the same. When they conflict, which controls? The spoken word. It has been "the law in this circuit since the 1930’s” and remains so today.

In United States v. Young, decided October 31, 2016, the Tenth Circuit remanded a supervised release judgment to the district court with an order for the court to issue an amended judgment that conformed to its oral ruling. At the time of the revocation, the district court imposed an eight-month sentence and three years of supervised release, specifying that “all of the conditions that were previously imposed” would again apply.

But two weeks later, the district court issued the written judgment with different conditions of supervised release that had not been ordered from the bench. The written conditions required Mr. Young  to “reside at a residential re-entry center program, in the community corrections component allowing for work release, for up to 120 days, at the direction of the U.S. Probation Officer.” It also changed the previous requirement to “participate in an approved program for mental health,” to instead require Mr. Young to “participate as directed in a cognitive behavioral program." And, of course, because these were not announced at the time of sentencing, Mr. Young was not in a position to object.

The Tenth Circuit agreed "that the written judgment must conform to Mr. Young’s actual sentence. Rather than vacate Mr. Young’s sentence to remedy this clerical error, we remand with instructions to the district court to issue an amended judgment." The district court must conform the written to the oral judgment; it was not remanded to allow the court to expand or change the original ruling from the bench.

The take-away: take time to compare the written judgment (including the SR conditions) to the court's oral ruling and challenge any variance. This means paying special attention to the conditions recommended by USPO and the court's imposition of sentence. Correcting a variance in the written judgment could mean a great deal if there is a later SRV. Also, check to make sure that any recommendations from the court, such as BOP placement, RDAP, or concurrent sentences, are accurately and completely included in the written judgment.

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