UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4452

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VINCENT HERNANDEZ, a/k/a Vin Rock, a/k/a Barrack,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:10-cr-00266-JFM-3)

Submitted: March 28, 2014 Decided: April 4, 2014

Before SHEDD, AGEE, and FLOYD, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

John A. Bourgeois, Ezra S. Gollogly, KRAMON & GRAHAM, PA, 

Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United 

States Attorney, Peter Marshall Nothstein, Assistant United 

States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Vincent Hernandez was convicted after a bench trial of 

all three counts charged in his superseding indictment: 

conspiracy to distribute and possess with intent to distribute 

marijuana and 280 grams or more of cocaine base (“crack”) 

(Count 1); possessing a firearm in furtherance of a drug 

trafficking crime, in violation of 18 U.S.C. § 924(c) (2012) 

(Count 2); and possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g) (2012) (Count 3). The district 

court sentenced Hernandez to sixty months of imprisonment on

Counts 1 and 3, to run concurrently, and to sixty months on 

Count 2, to run consecutively, for a total of 120 months of 

imprisonment. Hernandez appeals raising two issues: (1) whether 

his convictions are supported by substantial evidence, and (2) 

whether the district court erred by denying his motion for a new 

trial. For the reasons that follow, we affirm Hernandez’s 

convictions and sentence but remand to the district court for 

correction of clerical error. 

A defendant who challenges the sufficiency of the 

evidence to support his conviction bears a heavy burden, United 

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997), because 

we review the issue in the light most favorable to the 

Government. Glasser v. United States, 315 U.S. 60, 80 (1942). 
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Reviewing the evidence as required, we find the convictions are 

supported by substantial evidence and therefore affirm. 

 We observe, however, that the district court’s 

criminal judgment denotes that Hernandez’s drug conspiracy in 

Count 1 involved an unspecified amount of crack and refers to 

the superseding indictment. But in pronouncing its verdict, the 

court concluded that it could only find twenty-eight grams in 

the conspiracy beyond a reasonable doubt (J.A. 386-87), and in a

later memorandum opinion the court noted that “it convicted 

[Hernandez] of the lesser included offense of conspiracy to 

distribute and possess with intent to distribute 28 grams or 

more of cocaine base because it found that only 28 to 280 grams 

of cocaine were foreseeable to Hernandez as a member of the 

conspiracy.” (J.A. 530).∗

 

 Although a court speaks through its judgments and 

orders, see Murdaugh Volkswagen, Inc. v. First Nat’l Bank, 741 

F.2d 41, 44 (4th Cir. 1984), in criminal cases, the general rule 

is that the oral pronouncement of the sentence governs. Rakes 

v. United States, 309 F.2d 686, 687-88 (4th Cir. 1962). We thus 

conclude that the conflict between the criminal judgment and all 

other record facts in this case is clerical error that should be 

 ∗ The Government concedes on appeal that Hernandez was only 

found guilty of distributing 28 grams of crack in Count 1. See

Appellee’s Br. at 4. 
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corrected. See Fed. R. Crim. P. 36. Thus, we remand this case 

to the district court with instructions to amend the criminal 

judgment to reflect that the conspiracy in Count 1 involved 

twenty-eight grams or more of cocaine base. 

Next, Hernandez alleges that the district court erred 

by denying his motion for a new trial. In his Fed. R. Crim. P. 

33 motion, Hernandez noted that a confidential informant, who 

testified in his case, later retained some crack following a 

controlled buy in an unrelated case. Hernandez claimed that the 

informant’s conduct in that unrelated case constituted new 

evidence in his trial and established grounds for his Rule 33 

motion. The district court denied the motion noting that other 

evidence, separate from the confidential informant, supported 

his convictions. We find no abuse of discretion in the district 

court’s denial of the motion. See United States v. Robinson, 

627 F.3d 941, 948 (4th Cir. 2010) (providing review standard and 

five-factor test for analyzing Rule 33 claims).

Accordingly, we affirm Hernandez’s convictions and 

sentence but remand to the district court for the limited 

purpose of correcting the clerical error, specified above. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED AND REMANDED