UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-4911



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


SYLVESTER RUFFIN,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-17-BO)


Submitted:   October 1, 2004                 Decided:   December 8, 2004


Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Sylvester Ruffin pled guilty to possession of a firearm

by a felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced as an

armed career criminal to the statutory minimum term of 180 months

imprisonment.          18 U.S.C.A. § 924(e) (West 2000 & Supp. 2004).

Because we find irreconcilable inconsistencies both in the oral

sentence and the written judgment, we vacate the sentence and

remand for resentencing.             On remand, the district court should

clarify its prior intent and issue a corrected judgment order.*

               Ruffin’s guideline range was 180-210 months.            Before the

sentencing hearing, the government filed a motion for a substantial

assistance departure pursuant to U.S. Sentencing Guidelines Manual

§ 5K1.1, p.s. (2002), and 18 U.S.C.A. § 3553(e) (West Supp. 2004),

which authorized a departure below the guideline range and below

the mandatory minimum sentence.              At the sentencing hearing, the

district court indicated that it would impose a sentence at the

bottom of the guideline range, i.e., 180 months.                   The government

then       reminded    the   court   that   it   had   filed   a   motion   for   a

substantial           assistance     departure     and    described      Ruffin’s



       *
      Counsel for Ruffin has filed a motion seeking leave to file
a supplemental brief addressing the effects of Blakely v.
Washington, 

(2004). The motion is granted and the
motion is deemed to provide the supplemental argument concerning
Blakely. After consideration of this court’s decision in United
States v. Hammoud, 

, 

(4th Cir. Sept. 8,
2004) (en banc), we find any claim made in reliance on Blakely to
be without merit.

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cooperation.    The court and the attorneys then had the following

exchange:

     THE COURT:   Why don’t you do a Rule 35 [motion] with him?

     [AUSA] MOORE:   It is a 5K and Rule –

     THE COURT: Well, I mean, why don’t you let him perform
     and then be – have his sentence modified. Are you going
     to bring him back again or not?

     [AUSA] MOORE:   I am not sure if he is going to be brought
     back or not.

     MS. GRAVES: I was under the impression that it was not
     very likely that he would be brought back, but under the
     current policy, that he would be eligible for the 25
     years, but –

     THE COURT:   All right.   We’ll do this.

     [AUSA] MOORE:     We are     recommending   a   25   percent
     reduction, 135 months.

     THE COURT:   All right.

     MS. GRAVES: Your honor, I would ask that you consider
     the reduction from the guideline range as it would be
     without the armed career criminal, without the mandatory
     minimum. His range would be 168 to 210, and I would ask
     you to consider the reduction from the 168 rather than
     from the 180.

     THE COURT: He has had a pretty violent history here.
     All right. This will be the judgment of the court. The
     defendant is hereby confined to the custody of the U.S.
     Bureau of Prisons or its authorized representative for
     imprisonment for a term of 188 months.

            The judgment and commitment order filed on the same day

showed that the court sentenced Ruffin to a term of 180 months

imprisonment. The accompanying statement of reasons identified the

guideline range determined by the district court as 180 to 210


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months.   On the same page, two boxes were checked indicating that

“[t]he sentence departs from the guideline range upon motion of the

government, as a result of defendant’s substantial assistance.”

The   sentence   of   180   months    was,    however,    the   bottom    of   the

guideline range, not a departure below it.

           Ruffin     argues   on    appeal     that   both     the    sentencing

transcript   and      the   written     judgment       order    have     internal

inconsistencies that make the judgment impermissibly ambiguous.

The government argues that the plain error standard of review

applies because Ruffin made no objection to the sentence when it

was pronounced or to the written judgment.               See United States v.

Olano, 

, 732-37 (1993) (stating plain error test).

           The government maintains that the 180-month sentence set

out in the written judgment is not plainly erroneous because it is

within the guideline range and further argues that this Court lacks

jurisdiction to review the sentencing court’s decision not to

depart for substantial assistance. The government asserts that the

sentencing transcript is probably in error where it indicates that

the orally pronounced sentence was 188 months because the notes

taken by the government attorney at the time reflect that the court

imposed a sentence of 180 months.            The government further asserts

that the notation in the written judgment order showing that the

court departed for substantial assistance is a clerical error.




                                     - 4 -
            Ruffin invokes the principle that criminal sentences must

“reveal with fair certainty the intent of the court,” United States

v. Daugherty, 

, 361 (1926), and argues that the

sentence imposed in his case fails this basic test.          A sentence

that contains internal contradictions which make it subject to

multiple interpretations is ambiguous and requires resentencing if

the court’s intent cannot be discerned.       United States. v. Moss,

, 174-75 (8th Cir. 1980).

            Generally, when there is a conflict between the orally

pronounced sentence and the written judgment, the oral sentence

controls.    Rakes v. United States, 

, 687-88 (4th Cir.

1962). Here, however, the government questions the accuracy of the

oral     sentence   apparently   imposed   (188   months),   which   was

inconsistent with the court’s initial stated intention to impose a

sentence at the bottom of the guideline range (180 months).          When

the sentence is ambiguous because of inconsistency in the oral

pronouncement, the appellate court “will look to the written

judgment as evidence of the sentencing court’s intent.”          United

States v. Osborne, 

, 283 n.1 (4th Cir. 2003).      However,

the written judgment is also inconsistent because it indicates that

the court departed below the guideline range for substantial

assistance while the sentence imposed is within the guideline

range.




                                  - 5 -
          Rather than leave the sentence open to question, we

conclude that “it is in the interest of judicial economy and

fairness to all concerned parties [to] remand for clarification of

the sentence,” United States v. Patrick Petroleum Corp., 

, 98 (5th Cir. 1982), and to permit the court to issue a new

judgment order which is internally consistent and also consistent

with the orally pronounced sentence.

          We therefore vacate the sentence imposed by the district

court and remand for resentencing so that the district court may

clarify its prior intent and issue a corrected judgment order.   We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                              VACATED AND REMANDED




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