Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2004

USA v. Bettis
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1803




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Recommended Citation
"USA v. Bettis" (2004). 2004 Decisions. Paper 1017.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1017


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                                                  NOT PRECEDENTIAL

        THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        ___________

                    Nos. 03-1803, 03-2533
                        ___________


              UNITED STATES OF AMERICA

                              vs.

                     MICHAEL BETTIS,

                              Appellant.

                        ___________


 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                (D.C. Criminal No. 01-cr-00626-1)
       District Judge: The Honorable Eduardo C. Robreno

                        ___________

          Submitted Under Third Circuit LAR 34.1(a)
                      January 26, 2004




BEFORE: NYGAARD, FUENTES, and STAPLETON, Circuit Judges.




                   (Filed: February 6, 2004)

                        ___________
                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Michael Bettis argues that the District Court erred by adding a twenty-four

month period of supervised release to a sentence that the Court had already entered two

months earlier. We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). The Government concedes that the District Court’s sua sponte action

was error and we agree.

              The facts of this case are well known to the parties and are not in dispute.

On March 17, 2003, the District Court entered an order sentencing Bettis to twelve

months imprisonment for violating the terms of his supervised release. On March 20,

2003, Bettis appealed this order.

              On May 12, 2003, the District Court, sua sponte, issued a second order

imposing a period of twenty-four months of supervised release on Bettis after the

conclusion of his twelve-month sentence. This order was intended to “clarify” the March

17th order. (App. at 6a.) Bettis appealed this second order, and we consolidated it with

his prior appeal.

              The Government correctly concedes that the District Court’s May 12th

order cannot be considered the correction of a clear error made within seven days after

sentencing, as is allowed under Federal Rule of Criminal Procedure 35(a). The



                                             2
Government also correctly concedes that the District Court’s imposition of this additional

term of supervised release is not the correction of a clerical error under Federal Rule of

Civil Procedure 36. Accordingly, as the Government also concedes, the District Court

lacked jurisdiction to add additional penalties to Bettis’ original sentence more than two

months after that sentence was imposed. See, e.g., United States v. Fraley, 

, 7

(4th Cir. 1993).

              We will vacate the District Court’s May 12, 2003 order.




                                             3
_________________________


TO THE CLERK:

           Please file the foregoing opinion.




                                          /s/ Richard L. Nygaard
                                          _________________________________
                                          Circuit Judge