F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , P laintiff-Appellee

,

v.

R A M O N O C H O A ,

Defendant-Appellant

. No. 14-10124

D.C. No. 1:08-cr-00067-L J O-2

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California L awrence J . O’Neill, District J u dg e, Presiding

Arg ued and Submitted December 8, 2014—San F r ancisco, California

F iled October 22, 2015

B efore: J ohnnie B . Rawlinson and Mary H. Murg u ia, Circuit J udg es, and Gloria M. Navarro, Chief District

J udg e. *

Opinion by

J u dg e Rawlinson; Dissent by Chief District J udg e Navarro

* T h e Ho n o rab l e G l o r i a M

. Nav arro , Ch i ef District J u dg e f o r t h e U .S. District Co u

rt f o r th e District o f

Nev ad a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. O C H O A 2

SUMMARY * *

Crim inal Law

Affirming a t wo-y ear sentence imposed following violations of supervise d r e l e ase, the panel held that F ed. R. Crim. P. 35 was n o t i n t e n ded to deprive the district court o f jurisdiction to alter a sentence during the course of the same hearing

.

T he p a nel held that a sentence is n ot final—a n d R u l e 35(a) does not apply

—when there is n o f

ormal break in the proceeding s from which to log ically and reasonably conclude
t h a t sentencing h ad finished; that the district court’s initia l twelve-month-and-a-day sentence was not a binding sentence within the meaning of Rule 35; and that nei t h e r 1 8 U .S.C. § 3582( c ) n or Rule 35 d eprived the district court o f jurisdiction to alter the defendant’s sentenc e d u e to the d e f endant’s a

pparently disrespectful conduct d uring th e ong oing sentencing hearing

. Dissenting

, Ch ief District J udg e N avarro wrote that the majority ’s ruling

, defy

ing the unambig uous lang uag e of Rule 35 and the ex press limit a t i o n of § 3582(c), upholds the draconian decision o f the sentencing court to sud d e nly double the term of incarc e r ation initially pronounced based solely on a perception that the defendant was laug hing at the
court.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. O C H O A 3

COUNSEL

Carlton F

. Gunn, P a s adena, California, for D efendantAppellant.

B enjamin B

. W ag ner, U nit ed States Attorney
, Camil A

. Ski p p e r, Appellate Chief, and Karen A. Escobar (arg ued), Assistant United States Att o rney , F resno, California, for Plaintiff-Appellee.

OP INION

RAW L I NSON, Circuit J udg e:

Appellant Ramon Ochoa (Ochoa) chal l eng es the two-y e ar sentence imposed following violations o f h is supervised release conditions. Ochoa specifically cont e nds that the district court erred in increasing his sentence to the two-y e ar

s t a t u t o r y m a x i m u m b a s e d o n O c h o a’ s a p p a r e n t l y d isrespectful conduct after the district court impos e d a sentence of twelve months and a day

. Ochoa maintains that the district court lacked jurisdi c t ion to increase a n already imposed sentence. 1 W e do not ag ree.

I. BACKGROUND

Ochoa was orig inally indicted for being a felon in possession o f firearms and ammunition and for conspiracy to distribute marijuana. O c hoa pled g uilty to the felon in possession of firearms and ammunition charg e a n d was

1 Och o a h as sin c e w i t h d raw n th e o th er issu es raised in h i s Op en in g B rief

. S ee No tice o f

W ith d raw al o f

A rg u m en ts d ated May

1 5 , 2 0 1 5.U N I T E D S T A T E S V

. O C H O A 4

sentenced to seventy months’ imprisonment and a thirty -si x month period of supervised release.

W h ile Ochoa was still subject to supervised releas e , the probation office p ursued revocation based on Ochoa’s failure
to participate in a resid e n t i al reentry center prog ram a s directed. The probation officer had modified Ochoa’ s conditions of supervision to include a 180-day sta y a t the reentry center “due to what [ O choa] described as an unstable living sit uation at his p arent’s home

. . .” H owever, Ochoa “demonstrated arg umentative and disrespectful behavior towards the [ reentry center] staff [
, ]

. . . failed to follow staff directives, and while [ the probation] officer a ttempted to speak to [Oc h o a ] reg arding his behavior and placement, [ Ochoa] was a

rg umentative and disr e s p e ctful and stated he

was g oing to ‘walk away ’ from the prog ram, without permission.” I n further support o f revocation, the probation officer delineated that Ochoa h ad a prior history of violating reentry center policies, including testing positive for sy nthetic

c annabis use, possession of a small knife, and abusive behavior towards the reentry center staff.

B e cause Ochoa’s supervised r elease violation was a Grade C violation, the correspondi ng g u idelines sentencing
rang e w as seven to thirteen months’ i m p r i sonment. The probation office recommended that the district court impose

a sente n c e of twelve months and a d ay imprisonment. The
g overnment ag reed with the recommended sentence.

During the revocation procee d i n g, the district court determined that the applicable statutory max imum was two
y ears’ imprisonment a

n d that the sentencing g uidelines r ang e

was seven to thirteen months’ imprisonment. The dis t r i ct court initially observed that the recommended sentenc e o fU N I T E D S T A T E S V

. O C H O A 5

twelve months and a day w as “way too low” consideri ng Ochoa’s blatant disrespect for staff at the reentry center a nd for his p robation officer. Och o a responded that he did not intend to be disrespectful a n d a p o log iz ed for his behavior. The district court then stated to Ochoa:

You are disrespectful. You think y ou can do and say any

thing y ou w ant to say just simply because y

ou disag ree.

That’s not acceptable. You think that y ou

are on the same level and the s a me par with people who are r esponsible to g e t y ou on the rig ht track, and y

o u are wrong there too.

You think that the fact that committing a

c ri me a nd then having rules to follow a s a result of it shouldn’t be that important to y ou, and y o u are wrong

there too.

You jus t have this idea that y ou can do whatever y ou want and y ou are ju s t d e ad
wrong

. And I can tell y ou that no matter w hat I d o h e r e , y ou are g oing to be back in the
sy stem because y ou have an attitude t hat absolutely tells every

body on the face of the planet that y ou know more than they d o, y ou

are smarter than they d o [ s ic]

, and the law is not for y ou.

That’s too bad. You know, y ou talk about wanting to see y o ur ch i ldren. T his is a way not to see y our children.U N I T E D S T A T E S V

. O C H O A 6

I can’t understand f or the life of me, ho w y ou c an ’ t see that, but for w hatever reason, y o u can’t see it. And I don’t g et it, I don’ t understand it, but that’s up to y ou. You make
y our choices and we respond to them.

F ollowi ng these comments, the district court judg e imposed a sentence o f twelv e months a nd a day

. After the judg e informe d Ochoa of h is rig ht to appeal, he inquired if there w a s “ [ a ] n y

thing else? ” W hile Ochoa’s counsel attempted to clarify if Ochoa’s supervision was terminated, the judg e o bserved that O choa w a s l aug hing

. Ochoa stated that he was laug hing because he was “just surprised.” The judg e r esponded that Ochoa “just talked [ himself] into more time” and ex plained to Ochoa that the court had “just lectured [ him] about respect for the sy stem and now y ou laug h a t the court.” Althoug h Ochoa stated that he wa s n o t l a ug hing at the court, the judg e ex pressed the vi ew that O choa “won’t learn without g iving the max imum,” an d i mposed the

s t atutory max imum sentence of two y ears’ imprisonment. Ochoa’s c o unsel did not object to the district court’s imposition of the hig her sentence.

Ochoa filed a timely

notice of appeal of the sentence.

II. STANDARD OF REV IEW

W e r ev iew de novo the district court’s jurisdiction to impose sentence. See United States v. Penna
, 319 F .3d 509, 511 (9th Cir. 2003).U N I T E D S T A T E S V

. O C H O A 7

III. DISCUSSION

Rely ing on 18 U.S.C. § 3582(c), Ochoa contends that the district c ourt 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 te rm o f imprisonment once it has been imposed

ex c ept that–(1) in any case

. . . ( B) t h e c ourt

m a y m o d i f

y a n i m p o s e d t e r m o f imprisonment to t h e e x t e n t otherwise

ex p ressly permitted b y s tatute or by Rule 35 of the F e deral Rule s o f Criminal Procedure

. . .

I n turn, F ederal Rule of Criminal Procedure 35 states that “[ w] ithin 1 4 day s after sentencing

, the co u r t m ay correct a sentence that resulted from arithmetical, techn i ca l

, or other clear error” and d e f

ines “sentencing ” as “the oral announcement of sentence.” F ed. R. Crim. P. 35(a) & (c).

Althoug h we have not addressed the specific issue raised in this case , o ther circuits have. I n United States v. Meza
, 620 F .3d 505 (5th Cir. 2 010), th e Fi f t h Circuit considered whether the district court lacked jurisdiction under 18 U .S.C. § 3 5 8 2 (c) to correct a sentence after pronouncement o f
sentence and advisement that the defendant h ad a r i gh t to appeal. S

ee id. at 5 06–07. A fter the district court h ad pronounced a sentence of thirty -three months’ imprisonment

on the underly

ing char ge a

nd ten months’ imprisonment on

r e v o c a t i o n o f s u p ervised release, defendant’s attorney advise d the district court that the se ntencing rang e had beenU N I T E D S T A T E S V

. O C H O A 8

miscalculated. See id. at 507. The court acknowledg ed a nd corrected the miscalculation, but reformulated the sentence to reach the same total m o n t hs of imprisonment. Rather than thirty -three and ten months resp e c t ively

, the court ref o r mulated the sentence to correspond to the correct g uideline rang e of thirty months f or the underly

ing c h a r ge and thirteen months on revocation of supervised release. See id.

On appeal, t h e defendant challeng ed the district court’s authority to reformulate th e sentence after the sentence h ad been o r a l l y pronounced. See id. T he defendant arg ued that
t h e second statement by the sentencing judg e correcting the miscalculation and reformulating the sentence constituted an impermi s s i ble modification of her sentence. See id. at 508. However, the F ifth Circuit rea s o ned that the defendant’s
arg ument would be viable only if “ the initial utterance by the sentencing j u d ge was in fact a binding sentence.

. . .” I d. at 508.

T he F ifth Circuit observed that it had never applied “ a draconian rule” that would preclude the m odification of a sentence “made within the same h earing

, on the same day

, w ithin moments of the orig inal pronouncement.” Id. T h e Fifth Circuit ex plained that “[ t] he unbroken sequence o f actions in this case is a compelling factor in our consideration of F ederal Rule of Criminal Procedure 3 5. This c ounsels in favor of

. . . c o n s truing the totality of the events a s o ne sentence.” Id. 2

2 Ou r d issen tin g co lleag u e asserts th at th e ru le w e an n o u n ce to d ay is th e

“ draco n i an ” o n e, b ecau se it reco g n izes th e d i strict co u rt’ s p o w er to d o u b le Och o a’ s sen ten ce in resp o n s e to Och o a ’s l a ug h ter at th e sen ten cin g h earin g

. Dissen tin g Op i n io n , p p

. 1 7

– 1 8

. T h i s arg um e n t co n f u ses th eU N I T E D S T A T E S V

. O C H O A 9

T h e F i f t h C i r c u i t d i s t i n g

uished an unpublished dispositio n holding that the d istrict court erre d under Rule 35 b y convening a separate hearing and modify ing the defendant’s
sentence because the defendant “lodg ed a profanity

- l a d en d iatribe aimed at the sentencing judg e” after sentenc e w a s imposed. Id. The F ifth Circuit faulted the district court in that case b ecaus e “ t h e modification

. . . happened after that sentencing judg e g a v eled the hear i n g adjourned” a nd therefore “required the sentencing judg e to per f o r m the affirmative act of reconvening the hearing and entering

onto th e r e cord a sentence different than the one previously entered.

. . .” I

d. at 508–09 ( citation omitted). Unlike in the unpublished c ase, the F ifth Circ u i t r e a soned in Meza that
t h e re was no “formal break in the proceeding s,” id. at 50 9
, between the district c o u

rt’s announcement of the sentence a nd defense counsel’s pointing out the district court’s error. See id. at 506–07.

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

, 692 F .3d 393 ( 5th Cir. 2012), the F ifth Circuit reiter a t ed its reasoning

. I n Gerezano-Rosales

, a f ter t h e district court h ad

or a l l y pronounced sentence, it d iscovered that Gerez a no

d istrict co u rt’ s j u risd ictio n t o an n o u n ce sen ten ce w ith th e reaso n ab len ess

o f th e sen ten ce it an n o u n ces. T h e district co u rt is req u ired to f o rm u late a

sen ten ce f o r a su p erv ised release v io latio n acc o r d in g to th e f acto rs ref erred
to in 1 8 U .S.C. § 3 5 8 3 (c). W h eth er th e d istrict co u rt u n reaso n ab ly d o u b led O ch o a’ s sen ten ce in resp o n s e t o O c h oa’ s b eh av io r in lig h t of th o se f acto rs i s n o t b ef

o re u s—Och o a ex p ressly w ith d rew all su ch

co n ten tio n s af

ter o ral arg u m en t. W e th eref o re ex p ress n o o p in io n o n th e

m atter. W e n o te o n ly th at t h e reaso n ab len ess o f th e d istrict co u rt’ s in creased sen ten ce is a sep ar a t e q u estio n f ro m w h eth er th e d istrict co u rt h a d j u risd ictio n to in crease th e sen ten ce in th e f irst p lace. W e h old t h a t th e d istrict co u rt retain ed j u risd ictio n to alter t h e sen ten ce u

n til a “ f o rm al b reak in th e p ro c e e d i n gs” o ccu rred

, i.e.
, u n til th e sen ten cin g h earin g

co n clu d ed

. Gereza n o -Ro sa les , 6 9 2 F.3 d at 3 9 7

.U N I T E D S T A T E S V

. O C H O A 10

s p oke Eng lish, which called into question some of t h e representations made by Gerez ano dur i n g the sentencing hearing

. S

ee id. at 396.

After a mil d ly heated ex c hang e with the defendant
reg arding G erez a

no’s neg ative attitude, the court ma de the following statement:

I find that y ou are d i s r e specting me. I stand for the la w of the United States and y our demeanor is disrespec tful. Your words a re disrespectful. Every

thing about y ou so far has been disrespectful since I just sentenced y ou. That is chang ed circumstances. Be cause o f that I find that the gu i d e lines are no long er ade q u a te. So y our sentence instead of 71 months will now be 108 months. . . .

Id.

On appeal, Gerez ano challeng ed the authority of t h e district court to “re-sentence” him af t e r the initial sentence

was pronounced. The F ifth Circuit concluded that the district court’s initial, 71-month s e n t e n c e was not a final sentence

m o d i f i a b l e o nly according to § 3582(c) and Rule 35. The F ifth Circuit stated:

As in Meza
, w e co nclude that the district

c o u rt ’ s i n i t i a l o r a l p r o n o u n c e ment o f Gerez ano’s s e n t ence did not constitute a binding sentence and therefore did n ot s t r i p the co urt of jurisdiction to chang e its initial formu l a tion.

. . . T hus, there was no formal break in the proceeding s from w h i ch toU N I T E D S T A T E S V

. O C H O A 11

log ically and reasonably conclude t h at sentencing had finished. A ccording l y , the district court d id not lack jurisdiction to impose the 108-month sentence.

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

Other courts are in accord with t h e Fi fth Circuit’s interpretation of 18 U.S.C. § 3582(c) and Rule 35. I n United States v

. Luna-Acosta
, 715 F .3d 860, 865 (10th Cir. 2013), the Tenth Circuit observed that althoug h “Rule 3 5(c) defines sentencing as the oral announcement of the sentence, nothing in the rule r equires or sug g e sts that whatever term or terms o f imprisonment the district court first utters during a hearing is
to be treated as the sentence

. . .” (internal quotation marks omitted). The Tenth Circuit a d o p ted the F ifth Circuit’s holding in Meza that “a sentence is not final—and Rule 35(a) does not a p p l y

— when there is no formal break in the proceeding s from which to log ically and reasonably conclude
t h a t sentencing had f

inished.

. . .” Id. (citation a nd internal quotation marks omitted); see also U n i t e d S tates v. B u rgosAndujar

, 275 F .3d 23, 32 (1st Cir. 2001) (concluding that the district court’s alteration of a sentence d u ring the same hearing did not violate Rule 35).

W e are persuaded by the reasoning o f our sister circuits, and conclude that Rule 35 was not intended to deprive the district court of jurisdiction to alter a sentence d u ring the

course of the same hearing

. The rule Ochoa advocates would strip dis t r ict courts of flex ibility to r e spond to evolving circumstances d

uring sentencing hearings

. Here, for

ex a mple, Ochoa’s laug hte r s i g naled to the district court that Ochoa’s lack of interest in cooperating with those tasked with his rehabilitation was a s se v e r e as the court orig inallyU N I T E D S T A T E S V

. O C H O A 12

contemplated when remarking that the recommended
sentence of twelve months and a day “seem[ ed] . . . way too low.” I f the d istrict court’s initial twelv e

- m o n th-and-a-day
sentence were final under Ru l e 3 5
, the district court would have been unable to adjus t t h e sentence to account for this

unex p e cted development. U nanticipated events may also work in the defendant’s f avor–a c haracter witness mig ht arrive at the hearing late, or a new piece of mitig ating evidence mig ht be discovered. Ochoa’s proposed rule would preclude a district court from adjusting the sentence downward in lig ht of new informatio n fa vorable to the defendant.

W h en the F ifth Ci r c u it called the rule that Ochoa
proposes “draconian,” this is w hat it meant–the rule would

carve the district court’s initial pronouncement of sentence in stone, preventing the court f rom r evising the sentence in lig ht of new d evelopments d

uring the hearing

. Meza , 620 F .3d at 508. Consistent with the rule adopted by other c i rcuits, we hold that “a sentence is n ot final—and R u l e 3 5 (a) does not apply —w h e n there is no formal break in the proceeding s from which to log ically and reasonably conclude that sentencing had finished. . . .” Luna-Acosta , 715 F

. 3d at 865 (citation and internal quotation marks omitted). 3

3 A cco rd in g t o o u r d i s s en tin g co lleag u e, th e p lain t ex t o f Ru le 3 5
p ro v id es th at th e d istrict co u rt’ s in itial p ro n o u n cem en t o f sen ten ce is th e f in al sen ten ce, reg ard less o f w h at m ig h t h ap p en

later d u rin g th e h earin g

. S ee Dissen tin g Op in io n , p p

. 1 5 –1 9

. T h e dissen t b ases th i s co n clu sio n on th e d ef i n itio n in Ru le 3 5 of “ sen ten cin g ” as “ th e oral an n o u n cem en t of th e

sen ten ce.” Fed

. R. Crim

. P. 3 5 (c). Ho w ev er, th e d issen t d o es n o t ex p lain

w h y “ th e oral an n o u n cem en t o f th e s e nten ce” m u st m ean o n ly th e in itial
p ro n ou n cem en t o f th e s en ten ce; t h e ph rase m ay j u st as w ell ref er t o t h e

sen ten cin g h earin g a s a w h ole. We th in k th at th e latter m ean in g b etter p ro v id es f

o r “ th e j u st d eterm in atio n o f ev e r y crim in al p ro ceed in g ” an dU N I T E D S T A T E S V

. O C H O A 13

IV. CONCLUSION

W e h old that the district court’s initial, twelve-monthand-a-day sentence w as not a binding sentence w ith i n t he meaning of F ederal Rule of Criminal Procedure 35. According ly

, neither 18 U

. S.C. § 3582(c) nor Rule 35 deprived the d istrict court o f jurisdiction to alter O choa’s
senten ce due to Ochoa’s apparently disrespectful conduct during the ong oing sentencing hearing

.

AF F IRMED.

NAVARRO, Chief District J udg e, dissenting :

I respectfully dissent. The majority ’s ruling upholds the draconian decision of the sentencing court to suddenly double the term o f incarceration initially pronounced and impose the statutory max imum sentence based solely on a perception that the d e fendant was laug hing at the court. Affirming this injudicious d ecree of the sentencing court d e fies the unambig uous lang uag e o f Rule 35 of the F ederal Criminal Rules of Procedure and the ex press limitation of 1 8 U

. S.C. § 3582(c).

I

.

The jurisdiction o f district courts to recon s i d er terms o f imprisonment after they a re imposed is ex pressly limited b y 18 U.S.C. § 3582(c). T h i s s e c tion provides that a district

“ f airn ess in ad m in istratio n ,” a s i t perm its d istrict co u rts f l ex ib ility in d ealin g w ith

u n ex p ected ev en ts at th e h earin g . Fed . R. Crim . P . 2

.U N I T E D S T A T E S V

. O C H O A 14

court may not “modify a term of imprisonm e n t once it has been imposed ex cept

. . . to the e x t e n t o t herwise ex pressly permitted by statute or by Rule 35 of the F ederal Rules o f C r iminal Procedure.” 1 8 U.S.C. § 3 582(c). 1 The scop e o f § 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 d istrict c ourt to modify an imposed sente n c e only upon a finding that the sentence was based on “arithmetical, technical, or other clear error.”

Tog ether, these provisions proh i b it a district court from modify ing a term of imprisonment after a sentence has been orally announced ex cept for the r easons specifically set forth in Rule 35(a) or by statute

. Th erefore, the question o f whether the d istrict court possessed jurisdiction t o modify Ochoa’s sentence after declaring “twelve months and a day ”

as his term of incarceration turns o n l y u p o n whether that initial statement constituted an “oral announcement.” A s used in Rule 35, “sentencing ” o ccurs w h en a district court orally g ives notice

, i n o pen court, of the terms of a defendant’s sentence. 2 A fter o r a l n otice is g iven, § 3582

1 A d d it i o n ally

, § 3 5 8 2 (c) p ro v id es th at a d istrict co u rt m ay “ red u ce” a p rev io u sly im

p o s e d sen ten ce u

po n sp ecif

ic co n d itio n s, h o w ev er, th ese p ro v isio n s are n o t relev an t to th e in s tan t case.

2 It is f u n d am en t al th at s tatu to ry co n stru ctio n m u st b eg i n “w i t

h th e lan g u ag e of th e statu te itself .” U n i t e d S t a t es v. Ro n Pa ir En ters., In c. , 4 8 9 U.S. 2 3 5
, 2 4 1 (1 9 8 9); see a lso

, e.g

. , In g a lls S h ip b u ild in g, In c. v. Dir., Office o f W o r kers’ Co mp . Pro g ra m s , 5 1 9 U.S. 2 4 8
, 2 5 5 (1 9 9 7 ). W h ere

a “ statu te’ s lan g u ag e is p lain

, th e s o le f u n ctio n o f th e co u rts is to en f orce it acco rd i n g to its term s .” Ro n Pa ir En ters. , 4 8 9 U.S. at 2 4 1

. T h is sam e p rin cip l e a p p lies eq u ally to cases req u irin g th e in terp retatio n o f Fed eral Ru les of Crim in al P ro ced u re. S e e Un ited S ta tes v. Jo h n D o e, In c. I
, 4 8 1 U.S. 1 0 2
, 1 0 9 (1 9 8 7 ); Bo wma n Da iry Co

. v. Un ited S ta tes , 3 4 1 U .S.U N I T E D S T A T E S V

. O C H O A 15

s u b stantially restricts a district c ourt’s a bility to modify the stated term o f incarceration ex c ept f or the reasons specifically identified in Rule 35(a).

As applied in this case, th e d i s t r ict court orally g ave public notice of Ochoa’s sentence when it stated that Ochoa would be “committed to the c u stody of the B ureau of Prisons for the term

. . . o f t w e l v e months and a day .” After that moment, the district court lacked jurisdiction to increase Ochoa’s term of incarceration without specifical l y finding that the sentence imposed had resulted from “ar ithmetical, technical, or o ther clear e rror,” as stated in Rule 3 5(a). The fact that the district court beg an to inform Ochoa of his rig ht
to appeal is furt h er evidence that the pronouncement o f
sentence was complete, as that adv i c e is to be g iven only “[ a] fter sentencing .” F e d. R. Crim. P. 32(j)(1)(B ).

However, without reg ard for the procedure req u i r e d b y R u l e 3 2 or the restrictions of § 3582 or Rule 35, the district
court abruptly doubled Ochoa’s term of incarceration to the statutory max imum w ithout specify ing a reason for the

mo dification other than its belief that Ochoa had beg un laug hing at the court and “would not learn” r espect unless he
was g iven the statutory

max imum.

THE COURT: You think this is funny ?

THE DEF ENDANT: No way

.

2 1 4
, 2 2 0 (1 9 5 1 ). In co m

m on u sag e, t o “ an n ou n ce” m ean s “ to g iv e p u b l ic

n o tice o f .” W eb ster’s Th ird New In tern a tio na l Dictio n a ry 8 7 (1 9 8 6 ); see

a lso 1 Oxfo rd En g lish D ictio na ry 4 8 5 (2 d ed

. 1 98 9 ) (“ to m ak e k n o w n as

an o f f i cial m essen g er”); Bla ck’s La w Dictio n ary 1 0 4 (9 th ed . 2 0 0 9) (“ to

m ak e p u b licly k n o w n .”).U N I T E D S T A T E S V

. O C H O A 16

THE COURT: W hat is the laug hter about?

THE DEF ENDANT: I ’ m just surprised.

THE COURT: W ell, y ou just talked y our s e lf into more time.

THE DEF ENDANT: I ’ m surprised that –

THE COURT: No, don’t do th a t

. I have just lectured y ou about respect for the sy stem –

THE DEF ENDANT: I heard that.

THE COURT: – an d n o w y ou laug h a t the Court.

THE DEF ENDANT: Your Honor, I didn’t at all.

THE COURT: Yes, y ou did. Therefore, t h e Court finds that y ou won’t learn without
g iving the max imum, and I ’ m g iving the statutory max imum of two y ears, and it starts now. That’s it. You are done.

B ecause the district c o urt did not articulate either a proper Rule 3 5 or othe r valid statutory basis for vary ing from the
g uideline rang e and modify ing the twe l v e-month-and-one-U N I T E D S T A T E S V

. O C H O A 17

d a y term of incarceration, 3 it lacked jurisdiction to increase Ochoa’s sentence.

I I

.
Nevertheless, the majority sidesteps § 3582 and Rule 35 entirely

, while conspicuously declining to ex plain h o w t he district court’s initial recitation of Ochoa’s sentence of twelve months and a day could have been any thing other than an “oral a nnoun c e m e n t.” The majority simply dismisses Rule 35(c)’s c lear limitation as “draconian,” and a d o p t s an alte rnative rule conjured up by the F ifth Circuit in United States v. Meza
, 620 F .3d 505 (5th Cir. 2010). I n that case, the F ifth Circuit held that, after a sentence is o ra l l y a nnounced,

a district court maintains jurisdiction to re-impose a different
sentence for any reason it s e e s f i t without limitation so long as there has been no “formal break in the proceedings.”

The fact that the majority dismisses the plain meaning o f § 3582 and Rule 35 as “ draconian” is pa r t i c u l a rly ironic in lig ht of the facts of this case. I f the Court g ave reg ard to these provisions, Ochoa woul d s er ve only the orig inal
sentence of one y ear and a day

. However, by apply ing the F ifth Circuit’s Meza rule, the majority upholds an additional
y ear of confinement that was imposed as a co n sequence for Ochoa’s act o f laug hing at the district court. Considering the

severe o utcome in this case, it is readily apparent that the

more “ draconian” rule is the o ne that the majority has adopted today

, which allows a sentencing judg e to double the

3 “[ T ] o p r o m o t e resp ect f o r th e l aw ” is o m itted f

ro m su b sectio n (e) of § 3 5 8 3 an d n o t a f

acto r to b e co n sid ered d u rin g sen ten cin g fo r a

su p erv ised release v io l atio n

.U N I T E D S T A T E S V

. O C H O A 18

announced sentence and impose the statutory m a x imum because he believed the defendant laug hed at him.

Mo r e o v e r , the prag matic concerns raised by the F ifth Circuit in Meza to justify the creation o f its “formal break” rule were i l l

- founded because those c oncerns could a nd should have more properly been resolved by simply a pply ing Rule 35(a). I n Meza
, the district court wa s made aware of a miscalculation in the sentencing g uideline rang e immediately after it had announced the defendant’s sentence and r ead her appellate rig hts. The district court then immedi a t e l y issued

a different sentence using the correct g uideline r ang e. Given these f acts, the F ifth Circuit could have simply looked to Rule 35(a), a n d held that after the orig inal sentence was announced, the district court p roperly f ound that the sentence resulted from an “ arithmetical, technical, or other c lear e rror” and corrected it according ly

.

I nstead of recog niz ing t hat their concerns could be addressed w ithin the framework of § 3 58 2 a n d R u le 35, the Meza Court called these provisions “drac o nian,” ig nored their clear jurisdictional limitations upon the inherent common law authority o f the sentencing courts, and fabricated the “formal break” r ule herein adopted by the majority . I n its attempt to solve a problem that did not a ctually ex ist, the Meza Court manufactured a rule that weakens the finality of the sentence pronouncement and empowers parties to implore the court to reconsider its p r o nouncement rig ht up until the break. The decision of the majority is not supported by the relevant statutory tex t, and perversely permits district courts to increase sentences at a n arbitrary whim so long as the modified sentence is imposed b efore the bang of a g avel. The instant case demonstrates p r ecisely how it is actually theU N I T E D S T A T E S V

. O C H O A 19

c o r r ect application of Rule 3 5 (c) which prevents su c h draconian outcomes.

I t is also important to remember that a more valid avenue

ex ists outside of § 3582 and Rule 35 by w hich a district court may p unish a defendant whose c ourtroom mis b ehavior “obstruct[ s] the a dministration o f justice.” 18 U.S.C. § 401. I ndeed, this Cou r

t has previously held, “The inherent power of the courts to punish contempt of their authori t y a n d to

coerce compliance with orders is not d isputed.” United States

v. Powers
, 6 29 F .2d 619, 6 2 4 ( 9th Cir. 1 980). Therefore, if the district c ourt fel t i t necessary to punish O choa f or his purported disrespectful c ourtroom behavior, i t should have initiated contempt proceeding s rather than rashly increase his term of incarceration for the underly ing offense.

I I I

.

Section 3582 and Ru l e 35 impose unambig uous limitations upon the jurisdiction of district courts t o c h ang e their minds after imposing a sentence upon a defenda nt. These provisions embody the n otion t h a t a judg e’s decision

as to how long a defendant should b e involuntar i ly imprisoned must be careful, measured, and deliberate—n o t

s u b ject to impulsive chang e or emotional whims. Casting aside t h e clear limitations required by these p rovisions, the majority upholds a sentence that was imposed o u t of haste and imprudence, based o n conduct that occurred within the
courtroom. I t is hard to imag ine a more draconian rule t h an the one a dopted by the major ity today

. Therefore, under a plain reading of § 3582 and Rule 35, the improperly modifiedU N I T E D S T A T E S V

. O C H O A 20

imposition of a two-y e a

r term of incarcer a tion should be vacated and the orig inal sentence of twelve months and a day should be reinstated.

F or the foreg oing reasons, I respectfully

DI SSENT.