UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

AHMED MALACHI ABDEL-AZIZ, a/k/a

Bobby Seal, a/k/a Bobby Seals,  No. 02-7599

a/k/a Ahmed Abdel Aziz, a/k/a

Jerome Smith, a/k/a Michael Smith,

a/k/a Cedric Ellison, a/k/a Fretral

McRae, a/k/a Chreshan Allen,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Senior District Judge.

(CR-00-75)

Submitted: March 19, 2003

Decided: June 17, 2003

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Ahmed Malachi Abdel-Aziz, Appellant Pro Se. Dennis W. Duffy,

Assistant United States Attorney, Mary Jude Darrow, OFFICE OF

THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for

Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Ahmed Abdel-Aziz, who pleaded guilty to one count of bank fraud

conspiracy, one count of mail fraud, one count of bank fraud, and one

count of filing a false income tax return, in violation of 18 U.S.C.

§§ 371, 1341, 1344(1), (2), 287 (2000), respectively, appeals the district court’s denial of his "Motion to Correct Clerical Mistakes In

Judgment and Commitment Order Pursuant to Title 18 USCA Fed. R.

Crm. Proc. Rule 36." We have reviewed the record and find no

reversible error. 

The basis of this appeal is that the oral pronouncement at AbdelAziz’s sentencing hearing is internally ambiguous and inconsistent

with the written judgment of sentence with regard to the length of

imprisonment as to Counts Two and Three. Specifically, the sentencing transcript reflects that when the district court imposed the sentence of imprisonment, it stated as follows: "[T]he defendant is . . . to

be imprisoned for a term of 100 months in each of Counts Two and

Three, and a term of 60 months in Count Three, and the criminal

information. All to be served concurrently." The written judgment*

reflects that the district court imposed concurrent 100-month sentences as to Counts Two and Three of the indictment and fully concurrent 60-month sentences as to Count One of the indictment and

Count One of the criminal information. In denying Abdel-Aziz’s

motion to correct the judgment and commitment order, the district

court stated that it had reviewed the transcript of the sentencing hearing and was convinced that there are no clerical errors in the judgment

and commitment order. On November 12, 2002, following the filing

of Abdel-Aziz’s notice of appeal, the district court entered an order

*While the written judgment and commitment order was amended at

the order of this court, the amendment does not affect the analysis of this

appeal. 

2 UNITED STATES v. ABDEL-AZIZ
directing the clerk of the district court to amend the entry of the

docket sheet to reflect that Abdel-Aziz was sentenced to 100 months

on each of Counts Two and Three, concurrent with each other and

concurrent with Count One of the indictment. 

On appeal, Abdel-Aziz claims the district court erred in denying

his motion to correct the judgment order, and was without jurisdiction

to order the clerk, on November 12, 2002, to amend the docket entry.

Abdel-Aziz further asserts, in the alternative, that if this court deems

that the district court’s November 12, 2002, order was correct, the district court’s failure to reiterate his restitution sentence in that order

"cancelled" the restitution order such that he no longer should have

to pay it. 

As a preliminary matter, Abdel-Aziz’s attempt to appeal the district

court’s November 12, 2002, order directing the clerk of court to

amend the docket entry is not properly before this court for consideration in this appeal, because that order was entered by the district

court after the notice of appeal was filed. However, even if this court

had jurisdiction to consider this order, pursuant to Fed. R. Crim. P.

36, the district court has jurisdiction at any time to correct clerical

errors. Hence, Abdel-Aziz’s claim would be without merit. We find

specious Abdel-Aziz’s alternative claim that if the November 12,

2002, order to correct the docket entry is deemed proper he is

absolved from the requirement of paying restitution. 

It is well established in this circuit that where a direct conflict

exists between the oral pronouncement at sentencing and the written

order of judgment, the oral sentencing order is to be followed and the

remedy is to vacate the judgment and remand to the district court for

the purpose of correcting the written judgment to conform to the oral

sentence. Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir.

1962); see also United States v. Morse, 344 F.2d 27, 31 n.1 (4th Cir.

1965). This rule is followed where there is no ambiguity in the oral

pronouncement. Id.

Here, it is the oral pronouncement of sentence that is ambiguous

because the sentencing transcript reflects that the district court

imposed a sentence of imprisonment as to Count Three twice. To

impose the plain meaning of the words of this particular oral sentence

UNITED STATES v. ABDEL-AZIZ 3
would lead to an absurd result—two sentences of imprisonment on

Count Three and no sentence of imprisonment on Count One. See

United States v. Villano, 816 F.2d 1448, 1453 (10th Cir. 1987) (en

banc); see also Baca v. United States, 383 F.2d 154, 157 (10th Cir.

1967). While the district court twice mentioned Count Three in

imposing sentence, the fact that Abdel-Aziz pled guilty to Count One,

and the district court imposed a term of supervised release as to Count

One, supports the conclusion that the latter of the district court’s references to Count Three was intended to relate to Count One. This

conclusion is bolstered by the district court’s statement in the order

denying Abdel-Aziz’s motion to correct clerical mistakes that the

judgment and commitment order is without error. 

The obvious inference in this case is that either the district court

misspoke during the sentencing hearing, or the court reporter made a

clerical error, by making a second reference to Count Three instead

of referring to Count One. In any event, we find that the amended

judgment and commitment order accurately reflects the sentence

imposed and that the district court correctly held that no relief was

necessary on Abdel-Aziz’s motion to correct the written judgment.

Finally, we agree with the Government that even if Abdel-Aziz could

establish error with respect to the oral sentence of imprisonment relative to Count One, such error would be harmless under Fed. R. Crim.

P. 52(a), because Abdel-Aziz does not contest the validity of the adjudication as to Count One, and because the sixty-month sentence on

Count One was to run concurrently to the 100-month sentence

imposed on Counts Two and Three. 

Accordingly, we affirm the district court’s order denying AbdelAziz’s motion to correct the judgment and commitment order. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the Court and argument would not aid the decisional process. 

AFFIRMED

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