FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 13, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13378

Non-Argument Calendar

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D. C. Docket No. 08-00039-CR-ORL-31KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUSTIN FOSTER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 13, 2008)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Justin Foster appeals from his convictions for making false claims to a

federal agency, in violation of 18 U.S.C. §§ 2, 287, and theft of government

property, in violation of 18 U.S.C. §§ 2, 641. Foster argues that his convictions on
certain counts -- ones that the district court erroneously dismissed and then

reinstated at the sentencing hearing -- should be reversed as violative of the Double

Jeopardy Clause. After thorough review, we affirm.

We review Double Jeopardy challenges de novo. See United States v.

Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir. 1994). The Double Jeopardy

Clause provides that “[n]o person shall . . . be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double

Jeopardy Clause protects defendants in three situations: (1) a second prosecution

for the same offense after acquittal; (2) a second prosecution for the same offense

after conviction; and (3) multiple punishments for the same offense. Jones v.

Thomas, 491 U.S. 376, 380-81 (1989).

With regard to the first prong -- the only prong at issue here -- a defendant is

acquitted only when “the ruling of the judge, whatever its label, actually represents

a resolution [in the defendant’s favor], correct or not, of some or all of the factual

elements of the offense charged[.]” United States v. Scott, 437 U.S. 82, 97 (1978)

(quotations omitted and emphases added). An acquittal does not occur, however,

when the court makes an error of law under certain circumstances. “[A] defendant

has no legitimate claim to benefit from an error of law when that error could be

corrected without subjecting him to a second trial before a second trier of fact.”

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United States v. Wilson, 420 U.S. 332, 345 (1975). For example, “the imposition

of [a] sentence is [not] an ‘implied acquittal’ of any greater sentence,” where the

defendant “has not yet begun to serve that sentence.” United States v.

DiFrancesco, 449 U.S. 117, 133-34 (1980). Under these circumstances, “the

district court’s intention controls.” United States v. Khoury, 901 F.2d 975, 978

(11th Cir. 1990) (quotations and emphases omitted). Further, pursuant to Federal

Rule of Criminal Procedure 35(a), a district court, “[w]ithin 7 days after

sentencing,” may correct a sentence “that resulted from arithmetical, technical, or

other clear error.” Fed. R. Crim. P. 35(a).

On March 21, 2008, Foster pled guilty without the benefit of a plea

agreement to a four-count indictment, and was adjudicated guilty on all four

counts. During the sentencing hearing, held on June 9, 2008, the government

mistakenly relied on a draft plea agreement that was never filed, and as a result, the

district court labored under the mistaken belief that Foster only had pleaded guilty

to some of the counts, and that the government was recommending dismissal of the

ones remaining. The district court dismissed the counts in question before

realizing its error, although it reinstated them before the sentencing hearing ended.

Foster does not argue that the district court’s reinstatement of the dismissed

counts constituted a second prosecution for the same offense after conviction, or

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multiple punishments for the same offense, and he has not shown that this action

constituted a second prosecution for the same offense after acquittal. First, the

record demonstrates that the district court did not intend to acquit Foster or to

resolve factual issues in his favor. Because the district court sentenced him on

every count to which he had pleaded guilty before he was removed from its

custody, the initial dismissal had no legal effect and did not amount to an acquittal.

Second, if Foster’s sentence had taken effect at the moment of the dismissal, the

district court’s failure to impose a sentence on all four counts would have

constituted a sentencing error subject to modification under Fed. R. Crim. P. 35(a),

not an acquittal. Accordingly, the Double Jeopardy Clause has not been violated,

and we affirm Foster’s convictions.

AFFIRMED.

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