*

The Honorable Judith M. Barzilay, Judge for the United States Court

of International Trade, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0147P (6th Cir.)

File Name: 04a0147p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STERLING ROBINSON,

Defendant-Appellant.

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No. 03-4593

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 95-00079—George C. Smith, District Judge.

Argued: April 27, 2004

Decided and Filed: May 21, 2004 

Before: GUY and GILMAN, Circuit Judges; BARZILAY,

Judge.*

_________________

COUNSEL

ARGUED: Gordon Hobson, FEDERAL PUBLIC

DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.

2 United States v. Robinson No. 03-4593

Dana M. Peters,UNITEDSTATESATTORNEY, Columbus,

Ohio, for Appellee. ON BRIEF: Gordon Hobson,

FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,

Ohio, for Appellant. Dana M. Peters, UNITED STATES

ATTORNEY, Columbus, Ohio, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Sterling

Robinson pled guilty in July of 1997 to a drug trafficking

crime. He was granted an early release from his term of

imprisonment in September of 2001. On September 26, 2002,

Robinson admitted at a hearing held before a magistrate judge

that he had violated the terms of his supervised release. The

magistrate judge recommended that Robinson’s supervised

release be revoked and that he be sentenced to a one-year

term of additional imprisonment to be followed by a four-year

term of supervised release.

On January 8, 2003, the district court issued an order

adopting the magistrate judge’s Report and Recommendation

“insofar as it recommends revocation.” The district court

amended its order on November 25, 2003, adding a two-year

term of supervised release to the sentence that it had imposed

on January 8, 2003. Robinson appeals his amended sentence

on the ground that the district court lacked jurisdiction at that

point to amend the sentence. For the reasons set forth below,

we REVERSE the judgment of the district court and

REMANDwith instructions to reinstate the sentence that was

imposed on January 8, 2003.

I. BACKGROUND

Robinson pled guilty to one count of unlawful distribution

of more than 50 grams of crack cocaine on July 23, 1997. He

was sentenced to 96 months in prison, to be followed by 60
No. 03-4593 United States v. Robinson 3

months of supervised release. On September 21, 2001,

Robinson was granted an early release from prison and began

his term of supervised release. The United States Probation

Office petitioned the district court on August 16, 2002 to

revoke Robinson’s supervised release because he was using

cocaine and marijuana and was failing to participate in a

substance-abuse program.

On September 26, 2002, Robinson stipulated to the

violations at a revocation hearing before a magistrate judge.

The magistrate judge issued a Report and Recommendation

on November 20, 2002, proposing that Robinson’s

“supervised release be revoked and that [he] be sentenced to

a term of imprisonment of 12 months, such term of

imprisonment to be followed by another term of supervised

release of 4 years.” On January 8, 2003, the district court

adopted the report in part, stating: “The Court ADOPTS the

Magistrate Judge’s report and recommendation insofar as it

recommends revocation, and accordingly the Court

REVOKES defendant’s supervised release.”

Nine months later, based upon an inquiry from the Bureau

of Prisons regarding supervised release, the district court gave

notice that it intended to modify its January 8, 2003

judgment. A hearing on its proposed modification was held

on November 25, 2003. At the hearing, the district judge

stated the following:

The matter was brought to the Court’s attention by a

representative of the Bureau of Prisons, who asked the

Court for clarification of defendant’s term of supervised

release after he completes his 12-month term of

imprisonment. Upon review of the Court’s January 8,

2003 order, it appears that the Court has omitted the term

of supervised release to be served by the defendant. 

. . . .

4 United States v. Robinson No. 03-4593

Rule 36 of the Federal Rules of Criminal Procedure

provides that after giving any notice it considers

appropriate, the 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 an oversight or

omission.

The Court therefore finds that it has authority under

Rule 36 to correct the defendant’s supervised release

term that was omitted from his sentence on the

revocation. The Court provided appropriate notice to all

parties of this hearing on October 21, 2003. It was the

Court’s intention to sentence the defendant to a two-year

term of supervised release. Therefore, the Court’s

January 8, 2003 order stands amended.

This appeal followed.

II. ANALYSIS

A. Standard of review

The government argues that we should review the “district

court’s finding of clerical error . . . under a ‘clearly erroneous’

standard.” Robinson, however, does not seek review of the

district court’s finding that it had the intention on January 8,

2003 to include a term of supervised release. Instead,

Robinson seeks review of the district court’s legal conclusion

that its failure to express an intended element of a sentence

constitutes a “clerical error” under Rule 36. Conclusions of

law are reviewed de novo. See United States v. Portillo, 363

F.3d 1161,1164 (11th Cir. 2004) (applying de novo review to

determine whether the district court had jurisdiction under

Rule 36 to correct the original written judgment that

sentenced the defendant). 
No. 03-4593 United States v. Robinson 5

B. Does a district court’s power under Rule 36 to

“correct a clerical error in a judgment” include the

authority to amend a sentencing order to conform

with the court’s unexpressed intention?

“Within 7 days after sentencing, the court may correct a

sentence that resulted from arithmetical, technical, or other

clear error.” Fed.R.Crim.P. 35(a). Beyond seven days,

however, the court has jurisdiction to amend the sentence

only in conformity with Rule 36, which provides as follows:

“Clerical Error. After giving any notice it considers

appropriate, the 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.”

Fed.R.Crim.P. 36. Rule 36 was amended approximately one

year before the district court’s attempt to correct its error (the

revised language went into effect on December 1, 2002).

Previously, the rule stated as follows: “Clerical mistakes in

judgments, orders or other parts of the record and errors

arising from oversight or omission may be corrected by the

court at any time and after such notice, if any, as the court

orders.” The advisory committee notes, however, advise that

the changes “are intended to be stylistic only.”

Although the federal rules do not define what constitutes a

clerical error, this court has held that “a clerical error must not

be one of judgment or even of misidentification, but merely

of recitation, of the sort that a clerk or amanuensis might

commit, mechanical in nature.” United States v. Coleman,

No. 99-5715, 2000 WL 1182460, at *2 (6th Cir. Aug. 15,

2000) (unpublished) (quoting United States v. Burd, 86 F.3d

285, 288 (2d Cir.1996)). Rule 36 has been consistently

interpreted as dealing only with clerical errors, not with

mistakes or omissions by the court. See 3 Charles Alan

Wright, Nancy J. King & Susan R. Klein, Federal Practice &

Procedure § 611 (3d ed. 2004) (“It is only a clerical error that

may be corrected at any time under [Rule 36]. An error

arising from oversight or omission by the court, rather than

6 United States v. Robinson No. 03-4593

through a clerical mistake, is not within the purview of the

rule.”). 

Robinson argues that if a district court fails to express its

intention to include a new term of supervised release as part

of the sentence, then the absence of such a term in the

sentence is not a simple clerical error amenable to correction

under Rule 36. Conversely, the government argues that

because the district court found that “[i]t was the Court’s

intention to sentence the defendant to a two-year term of

supervised release,” the omission of that term constitutes a

clerical error regardless of whether the district court had ever

expressed that intention.

This court has already noted its agreement with the Second

and Seventh Circuits that Rule 36 “is not a vehicle for the

vindication of the court’s unexpressed sentencing

expectations, or for the correction of errors made by the court

itself,” Coleman, 2000 WL 1182460, at *2 (quoting United

States v. Daddino, 5 F.3d 262, 264 (7th Cir.1993)); see also

United States v. Werber, 51 F.3d 342, 343 (2d Cir. 1995)

(“Rule 36 authorizes a court to correct only clerical errors in

the transcription of judgments, not to effectuate its

unexpressed intentions at the time of sentencing.”). 

In support of its position, the government cites an earlier

unpublished opinion of this court, United States v. Libby, No.

95-1751, 1996 WL 117499 (6th Cir. Mar. 15, 1996). But

Libby is silent on the question of unexpressed sentencing

intentions, because that case involved “a discrepancy between

an oral sentence and the written order.” Id. at *2. This court

in Libby affirmed the district court’s decision to amend a

sentence by modifying a term of supervised release so that it

conformed with what had been orally discussed at Libby’s

hearing on his supervised-release violation. Id. Libby

therefore does not support the government’s position that

Rule 36 authorizes the amendment of a sentencing order to

conform with an unexpressed sentencing intention. 
No. 03-4593 United States v. Robinson 7

We also note that if the district court had made its judgment

self-sufficient by setting forth the terms of the sentence rather

than simply adopt by reference a portion of the magistrate’s

Report and Recommendation, the oversight that occurred in

this case would most likely never have happened. See 11

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice & Procedure § 2785 (2d ed. 1995) (“[T]he

separate judgment required by the 1963 amendment [of Rule

58 of the Federal Rules of Civil Procedure] should be selfsufficient and should not merely incorporate other documents

by reference . . . .”); Fed.R.Civ.P. 58(a)(1) (“Every judgment

and amended judgment must be set forth on a separate

document, but a separate document is not required for an

order disposing of [certain enumerated motions].”). This case

thus provides an instructive illustration of why the dispositive

terms of a judgment should be self-sufficient.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the

judgment of the district court and REMAND with

instructions to reinstate the sentence that was imposed on

January 8, 2003.