Of the District of Puerto Rico, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2604

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN L. RICCIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Senior U.S. District Judge]

Before

Howard and Stahl, Circuit Judges,

and Besosa, District Judge.*

 

Kathleen J. Hill for appellant.

Donald C. Lockhart, Assistant United States Attorney,

with whom Robert Clark Corrente, United States Attorney, and

Zechariah Chafee, Assistant United States Attorney, were on

brief, for appellee.

ORDER OF COURT

Entered: June 3, 2009
 Fed. R. App. P. 40(a)(4) provides that if a petition for 1

rehearing is granted, the court may “make a final disposition of

the case without reargument.”

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Besosa, District Judge. Appellant John L. Riccio was

convicted of violating 18 U.S.C. § 1001 by submitting a false

statement on a background check form (SF-86) to his former

employer, the Transportation Security Administration (TSA).

Mr. Riccio was later sentenced to a three-month prison term, with

two years of supervised release. In an earlier opinion, we

affirmed the judgment of the district court. United States v.

Riccio, 529 F.3d 40 (1st Cir. 2008).

Appellant filed a Petition for Rehearing and Motion for

Clarification requesting that we amend our opinion because the

government had conceded that the trial judge’s oral pronouncement

that Mr. Riccio continue his current mental health counseling,

which was on an outpatient basis, as a condition of release would

“control over the written condition which included in-patient

treatment as well.” The government’s response to the petition 1

sings a somewhat different tune. Basing its argument on this

court’s opinion, the government stated that because there was no

material conflict between the oral sentence and the written

judgment, the government’s statement at oral argument does not

provide a basis for clarifying our decision.

Having reviewed the audio-recording of the argument held

on March 4, 2008, we conclude that the government made the
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concession the defendant argues for at oral argument. The

government said the following:

“We concede that if the defense is willing to live with

the oral condition as it was pronounced at sentencing

then we are willing to live with it as well. And as

Judge Stahl has pointed out, normally the oral condition

controls anyway. I had thought there was a broader

attack on the condition, but if the defense is

withdrawing the other facets of its attack. . .” 

While we have recently held, in a somewhat different

context, that “[t]his court is not bound by a party’s concessions,”

United States v. Borrero-Acevedo, 533 F.3d 11, 15 n. 3 (1st Cir.

2008) (citing United States v. Mescual Cruz, 387 F.3d 1, 8 n. 2

(1st Cir. 2004)), w4e have also held that an oral sentence prevails

over a written judgment if there is a material conflict between the

two. See United States v. Sepúlveda-Contreras, 466 F.3d 166, 169

(1st Cir. 2006). Outpatient mental treatment is sufficiently

materially different from inpatient mental treatment for us to

require the district court make sure that its written sentencing

judgment is the same as its oral sentencing judgment.

Appellant’s Motion for Clarification is granted and our

original decision is modified to reflect the government’s

concession at oral argument. We remand the case to the district

court so that the written judgment may be corrected to conform to
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the judge’s oral pronouncement at the sentencing hearing.

SO ORDERED.

By the Court:

/s/ Richard Cushing Donovan, Clerk

cc: Hon. Ernest C. Torres, Mr. David DiMarzio, Clerk, United States

District Court for the District of Rhode Island, Mr. Lockhart, Ms.

Hill, & Mr. Chafee..