Filed: Feb. 15, 2019
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-3645 _ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Charmar Brown lllllllllllllllllllllDefendant - Appellant _ Appeal from United States District Court for the District of Nebraska - Omaha _ Submitted: November 15, 2018 Filed: February 15, 2019 _ Before BENTON, BEAM, and ERICKSON, Circuit Judges. _ BENTON, Circuit Judge. In 2007, a jury convicted Charmar Adonis Lareese Brown of one count of conspiring to dist
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-3645 _ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Charmar Brown lllllllllllllllllllllDefendant - Appellant _ Appeal from United States District Court for the District of Nebraska - Omaha _ Submitted: November 15, 2018 Filed: February 15, 2019 _ Before BENTON, BEAM, and ERICKSON, Circuit Judges. _ BENTON, Circuit Judge. In 2007, a jury convicted Charmar Adonis Lareese Brown of one count of conspiring to distr..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3645
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Charmar Brown
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 15, 2018
Filed: February 15, 2019
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Before BENTON, BEAM, and ERICKSON, Circuit Judges.
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BENTON, Circuit Judge.
In 2007, a jury convicted Charmar Adonis Lareese Brown of one count of
conspiring to distribute more than 1,000 kilograms of marijuana (count 1), one count
of possessing with intent to distribute more than 100 kilograms of marijuana (count
6), and three counts of using and carrying a firearm during a drug-trafficking crime
(counts 2, 4, 7). At sentencing, the district court orally sentenced him to concurrent
terms of life and 480 months on counts 1 and 6, and to consecutive terms of 120
months, 300 months, and 300 months on counts 2, 4, and 7. The judgment form
erroneously said that the sentence on count 6 was life.
Brown appealed. This court vacated his conviction on count 7, but otherwise
affirmed. United States v. Brown, 560 F.3d 754, 772 (8th Cir. 2009). On remand,
at the resentencing hearing, the parties agreed the court’s only job was to vacate the
sentence on count 7. The court entered a new judgment, removing the 300-month
sentence on count 7 but leaving the other sentences unchanged. Brown did not
appeal.
Brown filed his first 28 U.S.C. § 2255 motion in 2011. The district court
denied it; this court denied a certificate of appealability. He filed a second 2255
motion in 2013. The district court denied it as a successive 2255 motion that the
court of appeals had not authorized under 2255(h). This court denied a certificate of
appealability. He filed a third 2255 motion in 2016, asserting (in part) that sentencing
and resentencing counsel were ineffective for failing to object to the unconstitutional
life sentence on count 6. The district court denied the motion as successive without
authorization, and denied a certificate of appealability. Brown asked this court to
remand or, in the alternative, to issue a certificate of appealability. This court
directed the district court “to correct its judgment to reflect that Appellant Charmar
Brown’s sentence on Count 6 is 480 months.” This court then denied the motion to
remand as moot and dismissed the appeal. The district court corrected the judgment
on count 6 as instructed and filed a Second Amended Judgment with a sentence of
480 months on count 6.
Brown now appeals that Judgment. He argues that it is a substantive change
and a new judgment. He then seeks to raise numerous challenges to the Second
Amended Judgment.
Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal
prisoner must receive certification from the court of appeals to file a “second or
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successive” 2255 motion. 28 U.S.C. § 2255(h). “Second or successive” is a question
of law this court reviews de novo. See United States v. Sellner, 773 F.3d 927, 931
(8th Cir. 2014). A 2255 petition challenging a new sentence is not successive. See
Magwood v. Patterson,
561 U.S. 320, 339, 341-42 (2010) (If petitioner is resentenced
between first and second 2254 petitions, second petition—raising claims that could
have been raised in a previous petition—is not successive under 2244(b) because it
is the “first application challenging that intervening judgment.”); Dyab v. United
States,
855 F.3d 919, 923 (8th Cir. 2017) (“import[ing] Magwood’s inquiry about
entry of a new judgment to the 2255 context.”). The inquiry is “whether a district
court has entered a new, intervening judgment.”
Id. For a 2255 motion, “it is well
established that ‘[t]he sentence is the judgment.’”
Id., quoting Berman v. United
States,
302 U.S. 211, 212 (1937). If Brown’s Second Amended Judgment is a new
sentence, then his petition is not successive.
Brown’s Second Amended Judgment is not a new sentence. The judge orally
sentenced him to 480-months’ imprisonment on count 6. “The oral pronouncement
by the sentencing court is the judgment of the court.” United States v. Tramp, 30
F.3d 1035, 1037 (8th Cir. 1994). See also Fed. R. Crim. P. 35(c) (“As used in this
rule, ‘sentencing’ means the oral announcement of the sentence.”). Though the
written judgment said life on count 6, “when an oral sentence and the written
judgment conflict, the oral sentence controls.” United States v. Mayo,
642 F.3d 628,
633 (8th Cir. 2011). Here, the oral sentence of 480 months’ imprisonment controlled.
This court’s order directing the district court “to correct its judgment to reflect that
Appellant Charmar Brown’s sentence on Count 6 is 480 months” did not change the
sentence. Rather, that order ensured that the written judgment reflected his sentence
of 480 months.
The district court noted that the correction was under Criminal Rule 35(a).
That was wrong. Rule 35(a) authorizes a court to “correct a sentence that resulted
from arithmetical, technical, or other clear error” within “14 days after sentencing.”
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Fed. R. Crim. P. 35(a). The court here corrected the judgment years after
sentencing. See, e.g., United States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir.
2015) (“Under Federal Rule of Criminal Procedure 35(a), the district court lost any
power it may have had to correct an ‘arithmetical, technical, or other clear error’ in
the sentence fourteen days after pronouncing sentence.”); United States v. Winfield,
665 F.3d 107, 114 (4th Cir. 2012) (Rule 35(a) does not authorize district court to
amend sentence four months later).
This court may affirm the Second Amended Judgment for any reason supported
by the record. See, e.g., United States v. Price, 851 F.3d 824, 826 (8th Cir. 2017).
The district court’s correction of the written judgment was authorized by Criminal
Rule 36. See Fed. R. Crim. P. 36 (“[T]he court may at any time correct a clerical
error in a judgment, order, or other part of the record, or correct an error in the record
arising from oversight or omission.”).
“Correction of a clerical or typographical error pursuant to Criminal Rule 36
. . . does not justify disregarding prior § 2255 motions in the ‘second or successive’
calculus.” Dyab, 855 F.3d at 923. “Fixing typographical errors and the like does not
substantively alter a prisoner’s sentence, so a § 2255 motion filed after such a
correction is still a challenge to the original judgment.”
Id., citing Marmolejos v.
United States,
789 F.3d 66, 70-71 (2d Cir. 2015). When this court directed the
district court to correct its judgment, it was correcting an error in the record. This
correction in the Second Amended Judgment did not create a new sentence for the
purposes of Brown’s 2255 petition. His petition is successive, and his substantive
arguments are barred.
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The Second Amended Judgment is affirmed.
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