Attorney(s) appearing for the Case
Samuel G. Jackson, Jr., Deputy Federal Public Defender (argued), James R. Dunn, Nicholas R. Allis, Los Angeles, Cal., for defendant-appellant.
John P. Newman, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Before CHAMBERS, KOELSCH and HUFSTEDLER, Circuit Judges.
United States Court of Appeals, Ninth Circuit.
Certiorari Denied April 18, 1977. See 97 S.Ct. 1666.
HUFSTEDLER, Circuit Judge:
This appeal challenges the trial court's correction of an error in the sentencing of defendant Stevens. We affirm on the ground that a timely correction of an illegally imposed sentence was accomplished. (Fed.R.Crim.P. 35.)
Stevens was charged with three bank robberies in districts outside the Central District of California, and these cases were transferred to that district pursuant to Rule 20 (Fed.R.Crim.P. 20) for plea and sentencing. The plea bargain struck was an agreement that, among other things, a set of concurrent 10-year sentences would be the appropriate disposition.1 (See Fed.R.Crim.P. 11(e)(1)(C).) During the Rule 11 proceedings, defense counsel brought to the court's attention that Stevens understood the agreement to be concurrent sentences of up to 10 years while counsel understood it to be concurrent straight 10-year sentences. The judge inquired into this matter, and Stevens was informed that under the terms of the agreement the court would not be able to exercise discretion to set the terms at less than 10 years.2 Stevens declined to reject the agreement as clarified, and the court accepted the plea agreement. When sentence was pronounced, however, the judge stated that the sentences were for two years. The written judgment and commitment conformed to the oral sentence, also stating two-year terms.3 One week later there was a reappearance to correct the error. The judge stated that its purpose was to correct "a clerical error in the typing of the judgment." The prosecutor stated that Rule 35 was the appropriate rule under which to correct the sentence. At Stevens' request, the matter was continued to permit further negotiations with prosecutors in the transferor districts. After another week, a second appearance was held. The judge was informed that the transferor districts were "not willing to accept the defendant's backing out of that Rule 11(c) sentence," and that Stevens did not wish to withdraw his plea. The judge then corrected the sentence to concurrent 10-year terms.4 Stevens appeals from this sentence claiming it was improper to correct the sentence to increase it to ten years.
We hold that the action taken by the judge was a valid correction of an illegally imposed sentence under Rule 35. Rule 365 does not apply because there was no "clerical" mistake; the judge said "two," when he meant to say "ten."6 The mistake comes squarely within Rule 35. (See Nicholson v. United States (9th Cir. 1962) 303 F.2d 161, 163; 8A Moore's Federal Practice (2d ed. 1976) ¶ 36.02.) The 1975 amendments to Rule 11 were intended to preclude the exercise of discretion in a Rule 11(e)(1)(C) situation.
"If the plea agreement is accepted, Rule 11(e)(3) provides that the court must inform the defendant that it will incorporate in the judgment and sentence the disposition provided for in the plea agreement. An earlier version of this rule would have allowed the court to unilaterally substitute a disposition more favorable to the defendant. The rule, as enacted by Congress, eliminated this judicial discretion. Under the amended rule as it reads, effective December 1, 1975, a judge may either accept or reject the plea. Under the Supreme Court version, a third option would have existed—that of substituting a more favorable sentence." (8 Moore's Federal Practice (2d ed. 1976) ¶ 11.05, at 11-90. See also id. at n. 11.)
The court was without authority both to accept the plea agreement and to impose concurrent two-year terms. The two-year sentences could have been validly imposed for bank robbery offenses absent the Rule 11 procedures and the plea agreement. The "sentence [was] imposed in an illegal manner;" it was not an "illegal sentence."7 It could therefore be corrected within the time limits expressed in Rule 35. The prompt proceedings in this case satisfied those requirements.
Correction of a sentence imposed in an illegal manner does not violate double jeopardy even if the correction increases the punishment,8 and the fact that Stevens had commenced serving the defective sentence is irrelevant. (United States v. Munoz-Dela Rosa (9th Cir. 1974) 495 F.2d 253; cf. Bozza v. United States (1947) 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818; United States v. Mack (9th Cir. 1974) 494 F.2d 1204, 1207.) The manner in which the district court corrected the sentence was valid. Stevens and his counsel were personally present throughout the proceedings.9 (United States v. Mack, supra at 1208; Caille v. United States (5th Cir. 1973) 487 F.2d 614.)