* The Honorab le Judith M. Barzilay, Judge for t he United St ates Court of Internati onal Trade, sitti ng by designation. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0147P (6th C ir.) File Name: 04a01 47p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v
. S TERLI NG R OBIN SON , Defenda nt-Appel

lant. X - - - -> , - - N No. 03-4593

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

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

Argued: April 27, 2004 Decided and Filed: May

21, 2004 Before: GUY and GI

LMAN, Circuit Judges; BARZI LAY, Judge. *

_________________ COUNSEL ARGUED: Gor d on H obs on, FED ER AL PU BLIC DEFENDER’S OFFICE, Columbus, Ohio, for A pp ellant. 2 United States v. Robinson No. 03-4593

Dana M. P eters, UNITED STATES A TTORNEY, Columbus, Ohio, for Appellee

. ON BRI EF: Gordon Hobson, FEDERAL

PUBL IC DEFENDER’ S OFFI CE , Columbus, Ohio, for Appellant. Dana M. Pet ers, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

_________________ OPINION

_________________ RON ALD LEE G IL

MAN, Circuit Judge. Sterling Robinson pled guil ty in July of 1997 to a drug trafficking crime. He was g

ranted a n early releas e from his term of imprisonmentin September of 2001. On Sep tem ber 26, 2002, Robinson admitted a

t a hear ing held before a magist rate j udge that he had violated the terms of his supervised release. The magistr ate judge recommended that Robinson’ s supervised releas e be revoked and that he be sentenc ed to a one-year termof additional imprisonment to be followed by a four-year term of supervised release. O n Janua ry 8, 2003, the district court issued a n order adopting the mag istrate

judge’s Report and Recommendation “ins ofar as it recommends revocation.” The district co ur t amended its order on November 25, 2003, adding a two-y ear termof supervised

release to the sentence that it had imposed onJanuary 8, 2003. Robinson appeals his amended se ntence onthe ground that

the district court lacked jurisdiction at that pointto amend the sentence. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND with instructions to reinstate the sentence that was imposed on January 8, 2003.

I. BACKGROUND Robinson pled gu

ilty to one count of

unlawful distribution of more than 50 grams of crack coc aine on July 23, 1997. He was se nt en ce d t o 9 6 m on th s i n p ri so n, to be fo ll ow ed by 6 0No. 03-4593 United States v. Robinson 3

mo nths of supervised release. On September 21, 200 1 , Robinson was granted an

early release from prison and bega n his term of supervised release. The United States Probation Office petit ioned th e district court on August 1 6, 2002 to revoke Robinson’s supervi s ed release because he wa s using cocaine and mari

juana and was failing to participate in a substanc e-abuse

progra m. OnSe ptem ber 26, 2002, Robinson stipulated to the violations at a revocation hearing bef ore a magistrate judge. The magistrate j udge issued a Report and Recommendation onNovember 20 , 2002, proposing that Robinson’s “supervised

release be revoked and that [he] be sente

nced to a term of im

prisonme nt of 12 months, such term of imp risonment

to be followed by

another term of su

pervis e d releas e of 4 year

s.” On Ja

nuary 8, 2003, the district cour t adopted the report in part, stating: “The Court ADOPTS the Magistr ate Judge’s repo rt and recom mendation insofar

as it rec ommends revocation, and accordingly the Court REVOKES defendant’s supervised release.” Nine months later, based

upon aninquiry from the B ureau of Prisons regarding

supervised release, the district court ga ve notice that it intend ed to modify its January 8, 2003 judgment. Ahearing on its proposed modifica tion was he ld onNovember 25, 200 3. At t he hear ing, t he dis trict judge state d the f

ollo wing: The matte r w as br ou gh t t o t he Co ur t’ s a tt en ti on by a representative of the Bureau of Prisons, who a sked the Courtfor clarification of defendant’s term of super vised releas e after he completes his 12-m o nth term of imprisonme

nt. Upon review of the C ou rt’s January 8, 2003 order, it appears that the Court has omittedthe term of supervised release to be served by the defendant.

. . . . 4 United States v. Robinson No. 03-4593

Rule 36 of the Fe der al Rules of Criminal Procedure provides th at after giving any notice it considers appropriate, the Court may at any time corr

ect 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 corr

ect the d efenda nt’s supe rvised r elease termthat was omitted fr om his senten ce on the revocation. The Court

provided appropr iate notic e to all parties of this hearing on October 21, 2003. I t wa s the Court’s intention to sentence the defendant to a two-yea

r termof supervised release. Therefor e, the Co urt’s January 8, 2003 order stands a mended. This appeal followed. II. ANALY SIS A. Standard of review The government argues

that we should review

the “district court’s finding of clerical error . . . under a ‘clea rly errone ous’ standard.” Robinson, however, does not seek review of the districtcourt’s finding that it had the intention on January 8, 2003 to include a term of supervised release. I ns te ad, Robinson seeks review of the district court’s lega l conclusion that its failur e to expre ss an in

ten ded 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 dist ric t court had jurisdiction under Rule 3 6 t o correct the original written judgme nt that sentenced the defendant).No. 03-4593 United States v. Robinson 5

B. Does a district court ’s powe r under Rule 36 to “correct a clerical error in a judgment” i nc lude the authority to am en d a sentencing order to conform with the cou rt’s unex

pressed int ention? “Within 7 days afte

r sentencing , the cour

t may correct a sentence that resulted from arithmetical, t echni cal, or other clear error.” Fed.R.Cri m .P. 35(a) . Bey ond seve n day s, however, the cour

t has jurisdiction to amend the sentence only inconform

ity w ith Rule 36, which pr

ovides as follows: “C ler ical Error. After giving any notice it considers appropriate, the court may a t any time corre ct

a clericalerror ina judgment, order, or other part of the record, or correct an error in the record arising from oversig ht or omission. ” Fed.R.Cr im.P. 36. Rule 36 was amended approximately one year before the district court’s attempt to correct its error (the revised language went into effe ct on December 1, 2002). Pr ev io us ly, the rule stated as follows: “Clerical mistak e s in jud gments , orders or other parts of the record a nd errors arising from oversight or omission may be corrected

by t h e court at any time and after suc

h notice, if any , as th e cou rt orders.” The advisory c ommittee notes, however, a dvise that the changes “are intende d to be stylistic only .” Alth ough the fede

ral rule s do not def

ine what c onstitutes

a clerical error, this court has held that “a clerical error must not be one of jud

gment or even of m

isidentif ication, but mere ly of recitat ion, of the

sort th at a clerk or amanuensis might commit, mechanical in nature.” United States v. C oleman , No. 99- 571 5, 2 000 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 co nsistently interpreted

as deali ng only with cler

ical err ors, not with m istakes or omissions by the court. See 3 Charl es Ala n Wright, Nancy

J. King & Susan R. Klein, Federal Practice & Procedu re § 611 (3d

ed. 2004) (“ It isonly a cleric al error that may be corrected at any

time under [Rule 36]

. An error arising from overs ight or omission by the court, ra ther than 6 United States v. Robinson No. 03-4593

throu gh a clerica l mistake, is not within the purview of the rule.”). Robinson argues that if a district court fails to e xpre ss its intention to include a new term of supervised release as part of the sentenc e, then the absence of such a term in the sentence is not a simple clerical error amenable to correction under Rule 36. Conversely, t he gove rnment argues that beca u se the district court found that “[i]t was the Court’s intention to sentence the defendant to a two-y ear term of supervised

releas e,” the omission of t hat term c onstitutes

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 th e vindication of the co urt’s une xpressed s entencin g expectat ions, or for the correction of errors made by the court itself,” Coleman , 2000 WL 1182460, at *2 ( qu otin g United States v. Daddino, 5 F.3d 262 , 264 (7th C ir.1993) ); see also United States v. Wer

ber , 51 F.3d 342, 343 (2d Cir. 1995) (“Rule 36 author

izes a cou rt to correct only

clerica l errors in the transcription of judgments, not to e ffe ctuate it s unexpressed intentions at the time of sentencing.”).
Insupport of its position, the government cites an earlier unpublished

opinion of this court, United States v. Libby , No. 95-1751, 1996 WL 117499 (6th C ir. Ma r. 15, 1996). But Libby is silent o n th e question of unexpressed sentencing intentions , because that case inv olve d “a discrepancy between an oral sentence and

the written order.” Id. at *2. This court in Libby affirmed th e district court’s decision to amend a sentence by modify

ing a te rm of supe

rvised r elease so that it conformed

with what

had bee n orall y discussed at Libby ’s hear ing on his supervised-release violation. Id. Libb y therefore does not support the government’s position that Rule 36 authorizes the amen d ment of a sentenc ing orde

r 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 thansimply

adopt by refer ence a p ortio n of the magistrate’s Report and Recommendation, the ove rsig ht that occ

urred in this case would most likely neve r have happened. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Ka ne, Fed eral Prac tice

& Pro cedu

re § 2 785 ( 2d ed . 1995 ) (“[ T]h e separa te judgment required by

the 1963 amendment

[of Rule 58 of the Fe deral R

ules of C ivil Procedure] should be selfsufficient and should

not mere ly in

corpora te other document s by reference . . . .”); Fed.R.Civ.P. 58(a)(1) (“Every judgment and amended judgment must be set forth o n a s eparat e document , but a separ a te document is not required for an order disposing of

[certain enumera ted motions ].”). This

case thus provides an instructive illustrationof why the dispositive terms of a judgmen t should be

self-suf ficient. III. CONCL USION For all of the reasons set forth abov e, we REV ERSE the j udgment of the district court and REMAND wit h instruction s to reinstate the sentence that was imposed on January 8, 2003.