Filed: Feb. 07, 2017
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4330 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHARLES BENTIL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:02-cr-00499-JCC-1) Submitted: December 12, 2016 Decided: February 7, 2017 Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Geremy C.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4330 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHARLES BENTIL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:02-cr-00499-JCC-1) Submitted: December 12, 2016 Decided: February 7, 2017 Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Geremy C. K..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4330
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES BENTIL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:02-cr-00499-JCC-1)
Submitted: December 12, 2016 Decided: February 7, 2017
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Angela
Fiorentino-Rios, Special Assistant United States Attorney,
Christopher Catizone, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Bentil appeals from the 10-month sentence imposed
by the district court at a resentencing hearing after the
revocation of his supervised release. At Bentil’s revocation
hearing, the district court twice orally pronounced a sentence
of 10 days’ imprisonment, which was to run consecutive to any
state court sentence received by Bentil for the criminal conduct
underlying his revocation. The district court subsequently
entered a written judgment reflecting the 10-day sentence.
Fourteen days later, the district court sua sponte convened a
resentencing hearing and informed the parties that it had made a
mistake and had intended to impose a sentence of 10 months’
imprisonment, not 10 days. The district court stated that this
error was obvious from the record of the revocation hearing and
that the imposition of a 10-day sentence would be plainly
unreasonable and constitute reversible error. Finding the error
to be clear from the record, the district court resentenced
Bentil to 10 months’ imprisonment under Fed. R. Crim. P. 35(a).
Bentil noted a timely appeal, challenging the district court’s
authority to resentence him. For the reasons stated below, we
vacate the amended judgment order and remand with instructions
that the district court reinstate the 10-day sentence imposed at
Bentil’s revocation hearing.
2
A district court “may not modify a term of imprisonment
once it has been imposed unless the Bureau of Prisons moves for
a reduction, the Sentencing Commission amends the applicable
Guidelines range, or another statute or Rule 35 expressly
permits the court to do so.” United States v. Goodwyn, 596 F.3d
233, 235 (4th Cir. 2010) (internal quotation marks omitted).
Under Fed. R. Crim. P. 35(a), a district court “may correct a
sentence that resulted from arithmetical, technical, or other
clear error” within 14 days of sentencing. “[T]he scope of
clear error correctable under Rule 35(a) is extremely narrow,”
which comports with Congress’ intent “to promote openness and
finality in sentencing.” United States v. Fields,
552 F.3d 401,
404-05 (4th Cir. 2009) (internal quotation marks omitted).
“Although courts take different approaches to Rule 35(a), all
essentially agree that clear error under the Rule requires some
reversible error at the initial sentencing.”
Id. at 404
(internal quotation marks omitted). In other words, Rule 35(a)
“extend[s] only to those cases in which an obvious error or
mistake has occurred in the sentence, that is, errors which
would almost certainly result in a remand of the case to the
trial court.” United States v. Fraley,
988 F.2d 4, 7 (4th Cir.
1993) (quoting Fed. R. Crim. P. 35 advisory committee’s note to
1991 amendment). We review de novo the district court’s
3
exercise of jurisdiction under Rule 35(a). See United States v.
Poole, 531 F.3d 263, 270 (4th Cir. 2008).
On appeal, Bentil argues that the district court did not
have jurisdiction under Rule 35(a) to alter the 10-day sentence
initially imposed because the record does not evince that the
court committed “clear error” when imposing sentence at Bentil’s
revocation hearing. In response, the Government argues that
this court would have remanded for resentencing because the
10-day sentence is procedurally unreasonable, and therefore, the
district court properly corrected the “clear error” under Rule
35(a). 1 We agree with Bentil.
In order for the district court to exercise jurisdiction
under Rule 35(a), it must have been “almost certain” that the
10-day sentence would have been reversed on appeal. See Fraley,
988 F.2d at 7. However, “[a] district court has broad
discretion when imposing a sentence upon revocation of
supervised release,” United States v. Webb,
738 F.3d 638, 640
(4th Cir. 2013), and thus, in examining a revocation sentence,
this court “takes a more deferential appellate posture
concerning issues of fact and the exercise of discretion than
1
The Government also argues that the district court’s error
was arithmetical or technical. We find this argument
unpersuasive. Moreover, the district court solely relied on the
“clear error” language of Rule 35(a) to resentence Bentil.
4
reasonableness review for guidelines sentences,” United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks omitted). “We will affirm a revocation sentence
if it is within the statutory maximum and is not plainly
unreasonable.”
Webb, 738 F.3d at 640 (internal quotation marks
omitted). In conducting reasonableness review in the supervised
release revocation context, we “follow generally the procedural
and substantive considerations” used in reviewing
post-conviction sentences. United States v. Crudup,
461 F.3d
433, 438 (4th Cir. 2006).
A revocation sentence is procedurally reasonable if the
district court adequately explains the sentence after
considering the policy statements in Chapter Seven of the
Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a)
(2012) factors. See 18 U.S.C. § 3583(e) (2012); United
States v. Thompson, 595 F.3d 544, 546-47 (4th Cir. 2010). “A
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a
post-conviction sentence, but it still must provide a statement
of reasons for the sentence imposed.”
Thompson, 595 F.3d at 547
(internal quotation marks omitted).
We first conclude that the intent of the district court to
impose a 10-month consecutive sentence is not sufficiently clear
from the record of the revocation hearing, and as such, the
5
district court’s imposition of a 10-day sentence at the
revocation hearing was not the type of obvious error that we
have suggested is correctable under Rule 35(a). See Fields, 552
F.3d at 405 (suggesting district court could correct obvious
mistake where intent is clear from the record). Although the
district court noted at the revocation hearing that Bentil had
repeatedly violated the conditions of his supervised release,
the district court’s summary of those violations and the
punishments imposed indicate that the violations did not involve
shockingly abhorrent behavior. Furthermore, while the district
court did find that Bentil’s original offense was “very serious”
and that he had a significant criminal history, the court also
seemingly took into consideration several mitigating factors,
including Bentil’s steady employment, his clean drug screens,
his completion of a substance abuse program, his payment of
child support for his daughter, and his substance abuse problem,
which began at an early age. The court also acknowledged that
Bentil would likely face a sentence of imprisonment in state
court. Consequently, the district court’s intent at the
revocation hearing to sentence Bentil to 10 months rather 10
days is ambiguous at best, and thus, any disconnect between the
10-day sentence and the court’s intent at the revocation hearing
cannot support resentencing under Rule 35(a). See Fields,
552
6
F.3d at 405 (refusing “to search for an intent that was not
obvious to anyone” at initial sentencing hearing).
In addition, we find that the initial sentence of 10 days
imposed by the district court was not “clear error” within the
meaning of Rule 35(a) because we are not convinced that the
sentence would have “almost certain[ly]” been reversed for
procedural unreasonableness on appeal. See Fraley, 988 F.2d at
7. At the revocation hearing, the district court took into
account the Guidelines range and discussed several of the
§ 3553(a) factors. As discussed above, the district court also
considered the aggravating and mitigating factors in this case.
The district court’s discussion of these factors could support a
10-day sentence given the deference afforded to revocation
sentences by this court. Accordingly, we are not convinced that
we would find the 10-day sentence to be plainly procedurally
unreasonable on appeal.
Even if we might find the 10-day sentence to be
procedurally unreasonable, because the Government did not offer
any argument for a within-policy-statement range sentence at the
revocation hearing and did not object to the court’s explanation
of the 10-day sentence, plain error review would apply to any
appeal of the sentence for procedural unreasonableness. See
Webb, 738 F.3d at 640; United States v. Houston,
529 F.3d 743,
749-50 (6th Cir. 2008) (taking into account that plain error
7
review would have applied to appeal of sentence in clear error
analysis under Rule 35(a)). To establish plain error, the
Government would have to demonstrate that (1) the district court
committed an error; (2) the error was plain; (3) the error
affected the Government’s substantial rights; and (4) the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Puckett v. United States,
556 U.S. 129, 135 (2009) (internal quotation marks omitted); see
United States v. Blatstein,
482 F.3d 725, 730, 733 (4th Cir.
2007) (“[W]e have recognized that the substantial rights of the
Government are . . . entitled to protection from plain error.”).
Under plain error review, the Government would not be
certain to prevail on appeal. For the reasons explained above,
the Government cannot point to any error that is plain from the
record of the revocation hearing. Moreover, the Government
would be hard-pressed to argue that its substantial rights were
affected because the total state and federal sentence ultimately
imposed was greater than the sentence proposed by the Government
at Bentil’s revocation hearing. 2 Finally, any error by the
2Although the hearings before the district court occurred
prior to the imposition of Bentil’s state sentence, we note that
Bentil was ultimately sentenced to a term of imprisonment
exceeding one year, and therefore, the 10-day consecutive
sentence is longer than the 12-month concurrent sentence
recommended by the Government at the revocation hearing. See
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.
(Continued)
8
district court in imposing a 10-day sentence does not “seriously
affect the fairness, integrity or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135 (alteration and internal
quotation marks omitted). To the contrary, we believe that
permitting the district court to resentence Bentil after clearly
announcing the 10-day sentence and entering the written judgment
would be more detrimental to the fairness and integrity of the
proceedings than allowing the 10-day sentence to stand.
Accordingly, we vacate the amended judgment order and
remand with instructions that the district court reinstate the
10-day sentence imposed at Bentil’s revocation hearing. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
1989) (recognizing that we may take judicial notice of facts
outside of record on appeal in interest of justice).
9
