UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4916

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANKLIN HOWARD ENSMINGER,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (CR-05-27)

Submitted: June 30, 2006 Decided: August 2, 2006

Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Don Willey, Jefferson, North Carolina, for Appellant. Gretchen C.

F. Shappert, United States Attorney, Charlotte, North Carolina, Amy

E. Ray, Assistant United States Attorney, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Franklin Howard Ensminger was convicted pursuant to a

guilty plea for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2000). At sentencing, the

court imposed an eighty-three-month sentence. Ensminger appeals

his sentence, arguing that the district court erred in determining

that his prior North Carolina state conviction for involuntary

manslaughter constituted a “crime of violence” under U.S.

Sentencing Guidelines Manual §§ 2K2.1(a)(2), 4B1.2 (2004). 

Whether a particular state offense is a federal crime of

violence is a question of law reviewed de novo. United States v.

Pierce, 278 F.3d 282, 286 (4th Cir. 2002). In United States v.

Payton, 28 F.3d 17 (1994), this court considered whether the

defendant’s South Carolina conviction for involuntary manslaughter

constituted a “crime of violence” for purposes of sentencing

enhancement under USSG §§ 2K2.1(a)(2), 4B1.2. The court noted that

commentary to the USSG § 4B1.2 clearly listed manslaughter as a

“crime of violence.” Payton, 28 F.3d at 19. The court concluded

that, although the commentary does not differentiate between

involuntary and voluntary manslaughter, it includes both. Id.

Accordingly, Ensminger’s argument is foreclosed by Payton.

We vacate Ensminger’s sentence and remand to the district

court, however, on a different basis. At sentencing, based on

Ensminger’s offense level and criminal history category, the
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Guidelines range was seventy-seven months to ninety-six months of

imprisonment. The transcript of the sentencing proceedings

reflects that the district court imposed a sentence of eighty-three

months of imprisonment. The written judgment, however, states that

Ensminger was sentenced to seventy-seven months of imprisonment.

“[T]he sentences to be served . . . are those pronounced in the

defendant’s presence in open court and not those set out in the

written judgments of the court.” Rakes v. United States, 309 F.2d

686, 687 (4th Cir. 1962). Thus, the written judgment in the

instant case should reflect the district court’s oral pronouncement

at sentencing. 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. See id. at 688; see also

United States v. Morse, 344 F.2d 27, 30, 31 n.1 (4th Cir. 1965)

(the court “should carry out the true intention of the sentencing

judge as this may be gathered from what he said at the time of

sentencing”); Fed. R. Crim. P. 36 (“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.”). 

Accordingly, we vacate the district court’s judgment and

remand for the limited purpose of having the district court reenter

a written judgment conforming to the oral pronouncement at

sentencing. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

VACATED AND REMANDED