FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAMON OCHOA,

Defendant-Appellant.

No. 14-10124

D.C. No.

1:08-cr-00067-LJO-2

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

December 8, 2014—San Francisco, California

Filed October 22, 2015

Before: Johnnie B. Rawlinson and Mary H. Murguia,

Circuit Judges, and Gloria M. Navarro, Chief District

Judge.*

Opinion by Judge Rawlinson;

Dissent by Chief District Judge Navarro

* The Honorable Gloria M. Navarro, Chief District Judge for the U.S.

District Court for the District of Nevada, sitting by designation.
2 UNITED STATES V. OCHOA

SUMMARY**

Criminal Law

Affirming a two-year sentence imposed following

violations of supervised release, the panel held that Fed. R.

Crim. P. 35 was not intended to deprive the district court of

jurisdiction to alter a sentence during the course of the same

hearing. 

The panel held that a sentence is not final—and Rule

35(a) does not apply—when there is no formal break in the

proceedings from which to logically and reasonably conclude

that sentencing had finished; that the district court’s initial

twelve-month-and-a-daysentence was not a binding sentence

within the meaning of Rule 35; and that neither 18 U.S.C.

§ 3582(c) nor Rule 35 deprived the district court of

jurisdiction to alter the defendant’s sentence due to the

defendant’s apparently disrespectful conduct during the

ongoing sentencing hearing.

Dissenting, Chief District Judge Navarro wrote that the

majority’s ruling, defying the unambiguous language of Rule

35 and the express limitation of § 3582(c), upholds the

draconian decision of the sentencing court to suddenly

double the term of incarceration initially pronounced based

solely on a perception that the defendant was laughing at the

court.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. OCHOA 3

COUNSEL

Carlton F. Gunn, Pasadena, California, for DefendantAppellant.

Benjamin B. Wagner, United States Attorney, Camil A.

Skipper, Appellate Chief, and Karen A. Escobar (argued),

Assistant United States Attorney, Fresno, California, for 

Plaintiff-Appellee.

OPINION

RAWLINSON, Circuit Judge:

Appellant Ramon Ochoa (Ochoa) challenges the two-year

sentence imposed following violations of his supervised

release conditions. Ochoa specifically contends that the

district court erred in increasing his sentence to the two-year

statutory maximum based on Ochoa’s apparently

disrespectful conduct after the district court imposed a

sentence of twelve months and a day. Ochoa maintains that

the district court lacked jurisdiction to increase an already

imposed sentence.1 We do not agree.

I. BACKGROUND

Ochoa was originally indicted for being a felon in

possession of firearms and ammunition and for conspiracy to

distribute marijuana. Ochoa pled guilty to the felon in

possession of firearms and ammunition charge and was

1 Ochoa has since withdrawn the other issues raised in his Opening

Brief. See Notice of Withdrawal of Arguments dated May 15, 2015.
4 UNITED STATES V. OCHOA

sentenced to seventy months’ imprisonment and a thirty-six

month period of supervised release.

While Ochoa was still subject to supervised release, the

probation office pursued revocation based on Ochoa’s failure

to participate in a residential reentry center program as

directed. The probation officer had modified Ochoa’s

conditions of supervision to include a 180-day stay at the

reentry center “due to what [Ochoa] described as an unstable

living situation at his parent’s home . . .” However, Ochoa

“demonstrated argumentative and disrespectful behavior

towards the [reentry center] staff [,] . . . failed to follow staff

directives, and while [the probation] officer attempted to

speak to [Ochoa] regarding his behavior and placement,

[Ochoa] was argumentative and disrespectful and stated he

was going to ‘walk away’ from the program, without

permission.” In further support of revocation, the probation

officer delineated that Ochoa had a prior history of violating

reentrycenter policies, including testing positive for synthetic

cannabis use, possession of a small knife, and abusive

behavior towards the reentry center staff.

Because Ochoa’s supervised release violation was a

Grade C violation, the corresponding guidelines sentencing

range was seven to thirteen months’ imprisonment. The

probation office recommended that the district court impose

a sentence of twelve months and a day imprisonment. The

government agreed with the recommended sentence.

During the revocation proceeding, the district court

determined that the applicable statutory maximum was two

years’ imprisonment and that the sentencing guidelines range

was seven to thirteen months’ imprisonment. The district

court initially observed that the recommended sentence of
UNITED STATES V. OCHOA 5

twelve months and a day was “way too low” considering

Ochoa’s blatant disrespect for staff at the reentry center and

for his probation officer. Ochoa responded that he did not

intend to be disrespectful and apologized for his behavior. 

The district court then stated to Ochoa:

You are disrespectful. You think you can

do and say anything you want to say just

simply because you disagree.

That’s not acceptable. You think that you

are on the same level and the same par with

people who are responsible to get you on the

right track, and you are wrong there too.

You think that the fact that committing a

crime and then having rules to follow as a

result of it shouldn’t be that important to you,

and you are wrong there too.

You just have this idea that you can do

whatever you want and you are just dead

wrong. And I can tell you that no matter what

I do here, you are going to be back in the

system because you have an attitude that

absolutely tells everybody on the face of the

planet that you know more than they do, you

are smarter than they do [sic], and the law is

not for you.

That’s too bad. You know, you talk about

wanting to see your children. This is a way

not to see your children.
6 UNITED STATES V. OCHOA

I can’t understand for the life of me, how

you can’t see that, but for whatever reason,

you can’t see it. And I don’t get it, I don’t

understand it, but that’s up to you. You make

your choices and we respond to them.

Following these comments, the district court judge

imposed a sentence of twelve months and a day. After the

judge informed Ochoa of his right to appeal, he inquired if

there was “[a]nything else?” While Ochoa’s counsel

attempted to clarify if Ochoa’s supervision was terminated,

the judge observed that Ochoa was laughing. Ochoa stated

that he was laughing because he was “just surprised.” The

judge responded that Ochoa “just talked [himself] into more

time” and explained to Ochoa that the court had “just lectured

[him] about respect for the system and now you laugh at the

court.” Although Ochoa stated that he was not laughing at

the court, the judge expressed the view that Ochoa “won’t

learn without giving the maximum,” and imposed the

statutory maximum sentence of two years’ imprisonment.

Ochoa’s counsel did not object to the district court’s

imposition of the higher sentence.

Ochoa filed a timely notice of appeal of the sentence.

II. STANDARD OF REVIEW

We review de novo the district court’s jurisdiction to

impose sentence. See United States v. Penna, 319 F.3d 509,

511 (9th Cir. 2003).
UNITED STATES V. OCHOA 7

III. DISCUSSION

Relying on 18 U.S.C. § 3582(c), Ochoa contends that the

district court lacked jurisdiction to increase his sentence once

the district court pronounced a lower sentence.

18 U.S.C. § 3582(c) provides in relevant part:

The court may not modify a term of

imprisonment once it has been imposed

except that–(1) in any case . . . (B) the court

may modify an imposed term of

imprisonment to the extent otherwise

expressly permitted by statute or by Rule 35

of the Federal Rules of Criminal Procedure

. . .

In turn, Federal Rule of Criminal Procedure 35 states that

“[w]ithin 14 days after sentencing, the court may correct a

sentence that resulted from arithmetical, technical, or other

clear error” and defines “sentencing” as “the oral

announcement of sentence.” Fed. R. Crim. P. 35(a) & (c).

Although we have not addressed the specific issue raised

in this case, other circuits have. In United States v. Meza,

620 F.3d 505 (5th Cir. 2010), the Fifth Circuit considered

whether the district court lacked jurisdiction under 18 U.S.C.

§ 3582(c) to correct a sentence after pronouncement of

sentence and advisement that the defendant had a right to

appeal. See id. at 506–07. After the district court had

pronounced a sentence of thirty-three months’ imprisonment

on the underlying charge and ten months’ imprisonment on

revocation ofsupervised release, defendant’s attorneyadvised

the district court that the sentencing range had been
8 UNITED STATES V. OCHOA

miscalculated. See id. at 507. The court acknowledged and

corrected the miscalculation, but reformulated the sentence to

reach the same total months of imprisonment. Rather than

thirty-three and ten months respectively, the court

reformulated the sentence to correspond to the correct

guideline range of thirty months for the underlying charge

and thirteen months on revocation of supervised release. See

id.

On appeal, the defendant challenged the district court’s

authority to reformulate the sentence after the sentence had

been orally pronounced. See id. The defendant argued that

the second statement by the sentencing judge correcting the

miscalculation and reformulating the sentence constituted an

impermissible modification of her sentence. See id. at 508. 

However, the Fifth Circuit reasoned that the defendant’s

argument would be viable only if “the initial utterance by the

sentencing judge was in fact a binding sentence. . . .” Id. at

508.

The Fifth Circuit observed that it had never applied “a

draconian rule” that would preclude the modification of a

sentence “made within the same hearing, on the same day,

within moments of the original pronouncement.” Id. The

Fifth Circuit explained that “[t]he unbroken sequence of

actions in this case is a compelling factor in our consideration

of Federal Rule of Criminal Procedure 35. This counsels in

favor of . . . construing the totality of the events as one

sentence.” Id.2

2 Our dissenting colleague asserts that the rule we announce today is the

“draconian” one, because it recognizes the district court’s power to double

Ochoa’s sentence in response to Ochoa’s laughter at the sentencing

hearing. Dissenting Opinion, pp. 17–18. This argument confuses the
UNITED STATES V. OCHOA 9

TheFifthCircuit distinguished an unpublished disposition

holding that the district court erred under Rule 35 by

convening a separate hearing and modifying the defendant’s

sentence because the defendant “lodged a profanity-laden

diatribe aimed at the sentencing judge” after sentence was

imposed. Id. The Fifth Circuit faulted the district court in

that case because “the modification . . . happened after that

sentencing judge gaveled the hearing adjourned” and

therefore “required the sentencing judge to perform the

affirmative act of reconvening the hearing and entering onto

the record a sentence different than the one previously

entered. . . .” Id. at 508–09 (citation omitted). Unlike in the

unpublished case, the Fifth Circuit reasoned in Meza that

there was no “formal break in the proceedings,” id. at 509,

between the district court’s announcement of the sentence and

defense counsel’s pointing out the district court’s error. See

id. at 506–07.

In a more recent case, United States v. Gerezano-Rosales,

692 F.3d 393 (5th Cir. 2012), the Fifth Circuit reiterated its

reasoning. In Gerezano-Rosales, after the district court had

orally pronounced sentence, it discovered that Gerezano

district court’s jurisdiction to announce sentence with the reasonableness

of the sentence it announces. The district court is required to formulate a

sentence for a supervised release violation according to the factors referred

to in 18 U.S.C. § 3583(c). Whether the district court unreasonably

doubled Ochoa’s sentence in response to Ochoa’s behavior in light of

those factors is not before us—Ochoa expressly withdrew all such

contentions after oral argument. We therefore express no opinion on the

matter. We note only that the reasonableness of the district court’s

increased sentence is a separate question from whether the district court

had jurisdiction to increase the sentence in the first place. We hold that

the district court retained jurisdiction to alter the sentence until a “formal

break in the proceedings” occurred, i.e., until the sentencing hearing

concluded. Gerezano-Rosales, 692 F.3d at 397.
10 UNITED STATES V. OCHOA

spoke English, which called into question some of the

representations made by Gerezano during the sentencing

hearing. See id. at 396.

After a mildly heated exchange with the defendant

regarding Gerezano’s negative attitude, the court made the

following statement:

I find that you are disrespecting me. I stand

for the law of the United States and your

demeanor is disrespectful. Your words are

disrespectful. Everything about you so far has

been disrespectful since I just sentenced you. 

That is changed circumstances. Because of

that I find that the guidelines are no longer

adequate. So your sentence instead of 71

months will now be 108 months. . . .

Id.

On appeal, Gerezano challenged the authority of the

district court to “re-sentence” him after the initial sentence

was pronounced. The Fifth Circuit concluded that the district

court’s initial, 71-month sentence was not a final sentence

modifiable only according to § 3582(c) and Rule 35. The

Fifth Circuit stated:

As in Meza, we conclude that the district

court’s initial oral pronouncement of

Gerezano’s sentence did not constitute a

binding sentence and therefore did not strip

the court of jurisdiction to change its initial

formulation. . . . Thus, there was no formal

break in the proceedings from which to
UNITED STATES V. OCHOA 11

logically and reasonably conclude that

sentencing had finished. Accordingly, the

district court did not lack jurisdiction to

impose the 108-month sentence.

Id. at 397 (citation and internal quotation marks omitted).

Other courts are in accord with the Fifth Circuit’s

interpretation of 18 U.S.C. § 3582(c) and Rule 35. In United

States v. Luna-Acosta, 715 F.3d 860, 865 (10th Cir. 2013),

the Tenth Circuit observed that although “Rule 35(c) defines

sentencing as the oral announcement of the sentence, nothing

in the rule requires or suggests that whatever term or terms of

imprisonment the district court first utters during a hearing is

to be treated as the sentence . . .” (internal quotation marks

omitted). The Tenth Circuit adopted the Fifth Circuit’s

holding in Meza that “a sentence is not final—and Rule 35(a)

does not apply—when there is no formal break in the

proceedings from which to logically and reasonably conclude

that sentencing had finished. . . .” Id. (citation and internal

quotation marks omitted); see also United States v. BurgosAndujar, 275 F.3d 23, 32 (1st Cir. 2001) (concluding that the

district court’s alteration of a sentence during the same

hearing did not violate Rule 35).

We are persuaded by the reasoning of our sister circuits,

and conclude that Rule 35 was not intended to deprive the

district court of jurisdiction to alter a sentence during the

course of the same hearing. The rule Ochoa advocates would

strip district courts of flexibility to respond to evolving

circumstances during sentencing hearings. Here, for

example, Ochoa’s laughter signaled to the district court that

Ochoa’s lack of interest in cooperatingwith those tasked with

his rehabilitation was as severe as the court originally
12 UNITED STATES V. OCHOA

contemplated when remarking that the recommended

sentence of twelve months and a day “seem[ed] . . . way too 

low.” If the district court’s initial twelve-month-and-a-day

sentence were final under Rule 35, the district court would

have been unable to adjust the sentence to account for this

unexpected development. Unanticipated events may also

work in the defendant’s favor–a character witness might

arrive at the hearing late, or a new piece of mitigating

evidence might be discovered. Ochoa’s proposed rule would

preclude a district court from adjusting the sentence

downward in light of new information favorable to the

defendant.

When the Fifth Circuit called the rule that Ochoa

proposes “draconian,” this is what it meant–the rule would

carve the district court’s initial pronouncement of sentence in

stone, preventing the court from revising the sentence in light

of new developments during the hearing. Meza, 620 F.3d at

508. Consistent with the rule adopted by other circuits, we

hold that “a sentence is not final—and Rule 35(a) does not

apply—when there is no formal break in the proceedings

from which to logically and reasonably conclude that

sentencing had finished. . . .” Luna-Acosta, 715 F.3d at 865

(citation and internal quotation marks omitted).3

3 According to our dissenting colleague, the plain text of Rule 35

provides that the district court’s initial pronouncement of sentence is the

final sentence, regardless of what might happen later during the hearing. 

See Dissenting Opinion, pp. 15–19. The dissent bases this conclusion on

the definition in Rule 35 of “sentencing” as “the oral announcement of the

sentence.” Fed. R. Crim. P. 35(c). However, the dissent does not explain

why “the oral announcement of the sentence” must mean only the initial

pronouncement of the sentence; the phrase may just as well refer to the

sentencing hearing as a whole. We think that the latter meaning better

provides for “the just determination of every criminal proceeding” and
UNITED STATES V. OCHOA 13

IV. CONCLUSION

We hold that the district court’s initial, twelve-monthand-a-day sentence was not a binding sentence within the

meaning of Federal Rule of Criminal Procedure 35. 

Accordingly, neither 18 U.S.C. § 3582(c) nor Rule 35

deprived the district court of jurisdiction to alter Ochoa’s

sentence due to Ochoa’s apparently disrespectful conduct

during the ongoing sentencing hearing.

AFFIRMED.

NAVARRO, Chief District Judge, dissenting:

I respectfully dissent. The majority’s ruling upholds the

draconian decision of the sentencing court to suddenlydouble

the term of incarceration initially pronounced and impose the

statutorymaximum sentence based solely on a perception that

the defendant was laughing at the court. Affirming this

injudicious decree of the sentencing court defies the

unambiguous language of Rule 35 of the Federal Criminal

Rules of Procedure and the express limitation of 18 U.S.C.

§ 3582(c).

I.

The jurisdiction of district courts to reconsider terms of

imprisonment after they are imposed is expressly limited by

18 U.S.C. § 3582(c). This section provides that a district

“fairness in administration,” as it permits district courts flexibility in

dealing with unexpected events at the hearing. Fed. R. Crim. P. 2.
14 UNITED STATES V. OCHOA

court may not “modify a term of imprisonment once it has

been imposed except . . . to the extent otherwise expressly

permitted by statute or by Rule 35 of the Federal Rules of

Criminal Procedure.” 18 U.S.C. § 3582(c).1 The scope of

§ 3582(c) is further clarified by Rule 35(c), which states: “As

used in this rule, ‘sentencing’ means the oral announcement

of the sentence.” Concordantly, subsection (a) of that rule

limits a district court to modify an imposed sentence only

upon a finding that the sentence was based on “arithmetical,

technical, or other clear error.”

Together, these provisions prohibit a district court from

modifying a term of imprisonment after a sentence has been

orally announced except for the reasons specifically set forth

in Rule 35(a) or by statute. Therefore, the question of

whether the district court possessed jurisdiction to modify

Ochoa’s sentence after declaring “twelve months and a day”

as his term of incarceration turns only upon whether that

initial statement constituted an “oral announcement.” As

used in Rule 35, “sentencing” occurs when a district court

orally gives notice, in open court, of the terms of a

defendant’s sentence.2 After oral notice is given, § 3582

1 Additionally, § 3582(c) provides that a district court may “reduce” a

previously imposed sentence upon specific conditions, however, these

provisions are not relevant to the instant case.

2

It is fundamental that statutory construction must begin “with the

language of the statute itself.” United States v. Ron Pair Enters., Inc.,

489 U.S. 235, 241 (1989); see also, e.g., Ingalls Shipbuilding, Inc. v. Dir.,

Office of Workers’ Comp. Programs, 519 U.S. 248, 255 (1997). Where

a “statute’s language is plain, the sole function of the courts is to enforce

it according to its terms.” Ron Pair Enters., 489 U.S. at 241. This same

principle applies equally to cases requiring the interpretation of Federal

Rules of Criminal Procedure. See United States v. John Doe, Inc. I,

481 U.S. 102, 109 (1987); Bowman Dairy Co. v. United States, 341 U.S.
UNITED STATES V. OCHOA 15

substantially restricts a district court’s ability to modify the

stated term of incarceration except for the reasons specifically

identified in Rule 35(a).

As applied in this case, the district court orally gave

public notice of Ochoa’s sentence when it stated that Ochoa

would be “committed to the custody of the Bureau of Prisons

for the term . . . of twelve months and a day.” After that

moment, the district court lacked jurisdiction to increase

Ochoa’s term of incarceration without specifically finding

that the sentence imposed had resulted from “arithmetical,

technical, or other clear error,” as stated in Rule 35(a). The

fact that the district court began to inform Ochoa of his right

to appeal is further evidence that the pronouncement of

sentence was complete, as that advice is to be given only

“[a]fter sentencing.” Fed. R. Crim. P. 32(j)(1)(B).

However, without regard for the procedure required by

Rule 32 or the restrictions of § 3582 or Rule 35, the district

court abruptly doubled Ochoa’s term of incarceration to the

statutory maximum without specifying a reason for the

modification other than its belief that Ochoa had begun

laughing at the court and “would not learn” respect unless he

was given the statutory maximum.

THE COURT: You think this is funny?

THE DEFENDANT: No way.

214, 220 (1951). In common usage, to “announce” means “to give public

notice of.” Webster’s Third New International Dictionary 87 (1986); see

also 1 Oxford English Dictionary 485 (2d ed. 1989) (“to make known as

an official messenger”); Black’s Law Dictionary 104 (9th ed. 2009) (“to

make publicly known.”).
16 UNITED STATES V. OCHOA

THE COURT: What is the laughter about?

THE DEFENDANT: I’m just surprised.

THE COURT: Well, you just talked yourself

into more time.

THE DEFENDANT: I’m surprised that –

THE COURT: No, don’t do that. I have just

lectured you about respect for the system –

THE DEFENDANT: I heard that.

THE COURT: – and now you laugh at the

Court.

THE DEFENDANT: Your Honor, I didn’t at

all.

THE COURT: Yes, you did. Therefore, the

Court finds that you won’t learn without

giving the maximum, and I’m giving the

statutory maximum of two years, and it starts

now. That’s it. You are done.

Because the district court did not articulate either a proper

Rule 35 or other valid statutory basis for varying from the

guideline range and modifying the twelve-month-and-one-
UNITED STATES V. OCHOA 17

day term of incarceration,3it lacked jurisdiction to increase

Ochoa’s sentence.

II.

Nevertheless, the majority sidesteps § 3582 and Rule 35

entirely, while conspicuously declining to explain how the

district court’s initial recitation of Ochoa’s sentence of twelve

months and a day could have been anything other than an

“oral announcement.” The majority simply dismisses Rule

35(c)’s clear limitation as “draconian,” and adopts an

alternative rule conjured up by the Fifth Circuit in United

States v. Meza, 620 F.3d 505 (5th Cir. 2010). In that case, the

Fifth Circuit held that, after a sentence is orally announced,

a district court maintains jurisdiction to re-impose a different

sentence for any reason it sees fit without limitation so long

as there has been no “formal break in the proceedings.”

The fact that the majority dismisses the plain meaning of

§ 3582 and Rule 35 as “draconian” is particularly ironic in

light of the facts of this case. If the Court gave regard to

these provisions, Ochoa would serve only the original

sentence of one year and a day. However, by applying the

Fifth Circuit’s Meza rule, the majority upholds an additional

year of confinement that was imposed as a consequence for

Ochoa’s act of laughing at the district court. Considering the

severe outcome in this case, it is readily apparent that the

more “draconian” rule is the one that the majority has adopted

today, which allows a sentencing judge to double the

3

“[T]o promote respect for the law” is omitted from subsection (e) of

§ 3583 and not a factor to be considered during sentencing for a

supervised release violation.
18 UNITED STATES V. OCHOA

announced sentence and impose the statutory maximum

because he believed the defendant laughed at him.

Moreover, the pragmatic concerns raised by the Fifth

Circuit in Meza to justify the creation of its “formal break”

rule were ill-founded because those concerns could and

should have more properly been resolved by simply applying

Rule 35(a). In Meza, the district court was made aware of a

miscalculation in the sentencing guideline range immediately

after it had announced the defendant’s sentence and read her

appellate rights. The district court then immediately issued

a different sentence using the correct guideline range. Given

these facts, the Fifth Circuit could have simply looked to Rule

35(a), and held that after the original sentence was

announced, the district court properly found that the sentence

resulted from an “arithmetical, technical, or other clear error”

and corrected it accordingly.

Instead of recognizing that their concerns could be

addressed within the framework of § 3582 and Rule 35, the

MezaCourt called these provisions “draconian,” ignored their

clear jurisdictional limitations upon the inherent common law

authority of the sentencing courts, and fabricated the “formal

break” rule herein adopted by the majority. In its attempt to

solve a problem that did not actually exist, the Meza Court

manufactured a rule that weakens the finality of the sentence

pronouncement and empowers parties to implore the court to

reconsider its pronouncement right up until the break. The

decision of the majority is not supported by the relevant

statutory text, and perversely permits district courts to

increase sentences at an arbitrary whim so long as the

modified sentence is imposed before the bang of a gavel. The

instant case demonstrates precisely how it is actually the
UNITED STATES V. OCHOA 19

correct application of Rule 35(c) which prevents such

draconian outcomes.

It is also important to remember that a more valid avenue

exists outside of § 3582 and Rule 35 by which a district court

may punish a defendant whose courtroom misbehavior

“obstruct[s] the administration of justice.” 18 U.S.C. § 401. 

Indeed, this Court has previously held, “The inherent power

of the courts to punish contempt of their authority and to

coerce compliance with orders is not disputed.” United States

v. Powers, 629 F.2d 619, 624 (9th Cir. 1980). Therefore, if

the district court felt it necessary to punish Ochoa for his

purported disrespectful courtroom behavior, it should have

initiated contempt proceedings rather than rashly increase his

term of incarceration for the underlying offense.

III.

Section 3582 and Rule 35 impose unambiguous

limitations upon the jurisdiction of district courts to change

their minds after imposing a sentence upon a defendant. 

These provisions embody the notion that a judge’s decision

as to how long a defendant should be involuntarily

imprisoned must be careful, measured, and deliberate—not

subject to impulsive change or emotional whims. Casting

aside the clear limitations required by these provisions, the

majority upholds a sentence that was imposed out of haste

and imprudence, based on conduct that occurred within the

courtroom. It is hard to imagine a more draconian rule than

the one adopted by the majority today. Therefore, under a

plain reading of § 3582 and Rule 35, the improperly modified
20 UNITED STATES V. OCHOA

imposition of a two-year term of incarceration should be

vacated and the original sentence of twelve months and a day

should be reinstated.

For the foregoing reasons, I respectfully DISSENT.