United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1625

___________________________

United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Joseph B. Cannon,

lllllllllllllllllllll Defendant - Appellant.

____________

 Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

____________

 Submitted: June 11, 2013

 Filed: June 26, 2013 

____________

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.

____________

COLLOTON, Circuit Judge.

This appeal concerns the authority of a district court to alter a sentence once it

is imposed. We conclude, under the circumstances of this case, that the district court

lacked authority to modify a sentence imposed for Joseph B. Cannon’s violation of

supervised release. We therefore vacate the court’s second amended judgment and

direct that the original judgment be reinstated.
Cannon was sentenced to 48 months’ imprisonment in June 2008 for unlawful

possession of a firearm as a previously convicted felon. He was released and

commenced a term of supervised release on December 22, 2011. In March 2012,

Cannon admitted a violation of the terms of his supervised release. The district court

revoked Cannon’s release and sentenced him to 12 months’ imprisonment, but

subsequently amended its judgment twice, first to impose a sentence of “time served

plus 12 months’ imprisonment,” and later to impose a term of 24 months’

imprisonment. Cannon appeals, arguing that the district court lacked authority to

resentence him to the longer term of 24 months.

The relevant facts can be stated briefly. On March 9, 2012, a police officer

observed Cannon strike a woman in the head with an open hand. The officer arrested

Cannon, but he was released and issued a summons to appear one month later in

municipal court on a charge of misdemeanor assault. On March 14, 2012, Missouri

law enforcement officers again arrested Cannon, this time on a charge of first degree

assault arising from an incident on March 11, 2012. Cannon was detained in state

custody between March 2012 and February 2013, pending trial on the first degree

assault charge. On February 27, 2013, a jury acquitted Cannon of first degree assault.

The next day, the United States moved to revoke Cannon’s supervised release. 

The government alleged that Cannon had violated the conditions of his release by

committing the misdemeanor assault on March 9. Cannon admitted the violation, and

based on the nature of Cannon’s violation and his criminal history, the district court

correctly determined an advisory sentencing range of 7 to 13 months’ imprisonment. 

See USSG § 7B1.4(a). The government recommended “an additional year of

imprisonment however the Court wishes to impose that . . . but in some manner

reflecting that Mr. Cannon serve an additional year from today’s date with no further

supervised release.” The court said that it was “willing to follow the

recommendation,” and sentenced Cannon “to be imprisoned for a term of 12 months,”

with no additional term of supervised release.

-2-
Within days of sentencing, however, the district court apparently learned that

the federal Bureau of Prisons would award Cannon 12 months’ credit for time spent

in state custody before trial on the felony assault charge, see 18 U.S.C. § 3585(b)(2),

and thus would release him immediately. On March 19, the court ordered the

Marshals Service to hold Cannon in custody pending an appearance for resentencing,

and entered an amended judgment sentencing Cannon to “time served plus 12 months’

imprisonment.”

On March 20, the district court convened a second sentencing hearing. The

court explained that it had entered the amended judgment “in response to the

bewildering positions that are taken by the Bureau of Prisons in cases like this,” and

that it was “at a loss about why the Bureau of Prisons refused to accept the Court’s

positions on concurrent and consecutive time or when the sentence was supposed to

run.” The court said that it had intended for Cannon to serve 12 months “from the

date of our last hearing.” To “accomplish that goal,” the court resentenced Cannon

to 24 months’ imprisonment. As authority for amending the judgment, the court cited

Federal Rule of Criminal Procedure 35(a). Cannon objected that the court lacked

authority to change the original sentence, and he renews that contention on appeal. 

A district court may modify a term of imprisonment only in limited

circumstances. 18 U.S.C. § 3582(c). One set of circumstances is set forth in Federal

Rule of Criminal Procedure 35, see id. § 3582(c)(1)(B), which allows a court to

correct, within 14 days after sentencing, “a sentence that resulted from arithmetical,

technical, or other clear error.” Fed. R. Crim. P. 35(a). This rule, however, does not

permit a court “‘to reconsider the application or interpretation of the sentencing

guidelines’” or “‘simply to change its mind about the appropriateness of the

sentence.’” See United States v. Sadler, 234 F.3d 368, 374 (8th Cir. 2000) (quoting

Fed. R. Crim. P. 35 advisory committee’s note, 1991 amendments). The authority

conferred by Rule 35 is “very narrow,” id. at 373 (internal quotation omitted), and

-3-
extends only to errors that “would almost certainly be remanded to the district court

for further action.” Id. at 374. 

There was no reversible error in the district court’s original sentence. The

record of the first sentencing hearing shows that the court correctly calculated the

advisory sentence, considered the policy goals of the sentencing guidelines, and

adequately weighed the factors set out at 18 U.S.C. § 3553(a). The government does

not assert that the district court here, like the sentencing court in United States v.

Waters, 84 F.3d 86, 89-91 (2d Cir. 1996), was unaware of the relevant policy

statement in the advisory guidelines concerning credit for time served, see USSG

§ 7B1.3(e), and that the court failed to consider it. Nor does the government contend

that the court was ignorant of the duty of the Bureau of Prisons to award credit for

time that a defendant previously spent in official detention. See 18 U.S.C. § 3585(b);

United States v. Wilson, 503 U.S. 329, 334-35 (1992). The record of the second

hearing, rather, suggests that the court expected the Bureau of Prisons to take some

action, but was frustrated that the BOP would not “accept the Court’s positions” about

“when the sentence was supposed to run.” The original sentence, therefore, was not

the product of a mistake in the district court’s application of the sentencing guidelines

or a failure to consider the relevant statutory factors. The government does not urge

that the original sentence was substantively unreasonable.

The government does contend that Rule 35(a) authorizes a court to amend a

judgment to conform with the sentence that the court “intended to impose on the day

of the original sentencing,” because such a mistake is a form of “other clear error.” 

To accept this position, however, we must conclude that a court’s misunderstanding

or mistaken prediction about how the Bureau of Prisons would compute credit for time

served in official detention is a sufficient reason to alter a sentence. The Second

Circuit reserved judgment on that question in Waters, 84 F.3d at 91, but our circuit has

drawn the line under Rule 35(a) at sentences that are incorrect or unreasonable as a

matter of law, such that they would “almost certainly be remanded to the district court

-4-
for further action” in the event of an appeal. See Sadler, 234 F.3d at 374. The

sentence in this case does not meet that standard.

For these reasons, we vacate the district court’s second amended judgment and

remand with directions to reinstate the judgment entered on March 12, 2013.

______________________________

-5-