United States v. Villano

ON REHEARING EN BANC

BALDOCK, Circuit Judge.

Defendant, Paul C. Villano, filed a motion in federal district court to correct a clerical mistake in the order of judgment and commitment. He asserts that the sentence spoken by the trial judge is different from what appears on the judgment and commitment order, and because the two conflict, the oral sentence should control. The district court denied his motion, and a divided panel of this court affirmed that denial. The panel’s decision was vacated when the majority of the active judges of the circuit voted to have the appeal determined by an en banc panel. We granted rehearing en banc to consider the propriety of changing the established rule that an unambiguous oral pronouncement of sentence controls when there is a conflict between it and a written order of commitment. We decline to change the rule and therefore reverse the district court’s decision not to correct the judgment and commitment order.

I.

Defendant and two codefendants were sentenced on December 6, 1982, by the same federal district judge. The defendant and codefendants pleaded guilty to three counts: (I) conspiracy to make extortionate extensions of credit, (II) receipt of a firearm by a felon, and (III) false declaration on an income tax return. The two codefendants were sentenced to a five year prison term and a $10,000 fine on Count I, a three year prison term and a $5,000 fine on Count II, and a two year prison term and a $5,000 fine on Count III, each prison term to be served consecutively. Thus, the total prison sentence for each codefendant was ten years.

The sentence defendant received, as spoken by the judge, was different from what the codefendants received. Defendant’s sentence was identical to the sentences received by the codefendants except that Count III would run consecutively with Count I. Thus, defendant’s total prison sentence was eight years. The judgment and commitment order, signed the same day as the sentencing proceeding, was different from the oral pronouncement of sentence. The judgment and commitment order reflected a prison sentence of “five years as to Ct. I, three years as to Ct. II, and two years as to Ct. Ill, to run consecutively.” Record vol. I at 19. The prison sentence contained in the written order amounts to ten years. This longer sentence also appears in the “final judgment” and the district court’s docket sheet. Record vol. I at 18 and document 14 at 3.

Defendant’s March 1983 motion to reduce his sentence pursuant to Fed.R. Crim.P. 35 was denied. His petition to set aside the sentence pursuant to 28 U.S.C. § 2255 also was denied. That denial was affirmed on appeal. In September 1985, almost three years after he was sentenced, defendant moved to correct a clerical mistake in the judgment and commitment order pursuant to Fed.R.Crim.P. 36. The same district judge who imposed the sentence also denied this motion, stating in his order:

The written judgment and sentence is the only order of commitment. It is executed by the court and it controls. Moreover, it was the court’s intent that defendant Villano receive the same sentence as his codefendants and that all three receive an effective term of ten years. The statement of the court appearing in the transcript must be either an error by the reporter or the court mispoke [sic] itself.

Record vol. I, document 9 at 1. The defendant and the codefendants' attorneys recall the sentencing judge stating that Count III would run consecutively with Count I. That shorter sentence is reflected in the transcript of the sentencing proceeding and a taped recording of it.

II.

It is a firmly established and settled principle of federal criminal law that an orally pronounced sentence controls over a judgment and commitment order when the two conflict. This rule is recognized in virtually every circuit and has been the law in this circuit since the 1930’s. When an orally pronounced sentence is ambiguous, however, the judgment and commitment order is evidence which may be used to determine the intended sentence. Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968). This is the purpose of the written order: to help clarify an ambiguous oral sentence by providing evidence of what was said from the bench. Walden v. Hudspeth, 115 F.2d 558, 559 (10th Cir.1940); Baca, 383 F.2d at 157 (“where the orally pronounced sentence is ambiguous, the judgment and commitment may and should be used to clarify the actual intention of the sentencing judge.”). Because there is no ambiguity in this case and there is a conflict between the oral sentence and the written judgment and commitment order, the oral sentence controls.

The words spoken by the district judge are not ambiguous. The oral sentence clearly ordered defendant to serve his sentence on Count III consecutively to the sentence on Count I; the written judgment and commitment order clearly made the sentence on Count III consecutive to the sentence on Count II. There is a direct conflict.

It has been suggested that whenever there is a conflict between the oral sentence and the sentence as described in the written judgment, the court must attempt to discern the sentencing judge’s intentions. Apart from problems associated with ascertaining intent from the appellate record, such a change would affect important principles that underlie the traditional rule. The legal status of the oral sentence and the right to be present at sentencing would be diluted by an intent-based approach.

The sentence orally pronounced from the bench is the sentence. One of the purposes of the written judgment and commitment order is to provide evidence of the sentence. The promulgation of FecLR. Crim.P. 32(b)(1) has not changed the rule that the judgment in a criminal case is the sentence orally pronounced from the bench. Although Rule 32(b) has “enhanced the prestige of the written judgment,” Baca, 383 F.2d at 157, it has not abrogated the rule that the judgment in a federal criminal case is the sentence pronounced from the bench.

Rule 32(b) became effective in 1946, 327 U.S. at 821 (1946), and is a restatement of Rule I of the Criminal Appeals Rules of 1933, 292 U.S. 661 (1934). Notes of Advisory Committee on Rules. Despite the existence of Rule 32(b), however, the law continues to be that the legally effective sentence is the oral sentence and the judgment and commitment order is mere evidence of the sentence. Altering the rule would change the relative status of the oral sentence and the judgment and commitment order by making the two equal. As previously noted, however, the true function of the written document is to help clarify an ambiguous oral sentence by providing evidence of what was stated. Because there is no ambiguity in this case, the effect of the change would be to permit the evidence of the sentence to replace the sentence when there is a conflict. This is contrary to the purpose of the judgment and commitment order and changes the legal status of the oral sentence.

Changing the rule as suggested also would endanger the right to be present at sentencing. Fed.R.Crim.P. 43(a) mandates that “[t]he defendant shall be present ... at the imposition of sentence____” Rule 43 has its source in the confrontation clause of the sixth amendment and the due process clause of the fifth and fourteenth amendments. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 1484-85, 84 L.Ed.2d 486 (1985). Although it is not an absolute right, Illinois v. Allen, 397 U.S. 337, 342, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), it is fundamental to the entire law of criminal procedure. Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892) (dictates of humanity require defendant’s presence). A defendant is present only when being sentenced from the bench. Thus, a defendant is sentenced in absentia when the judgment and commitment order is allowed to control when there is a conflict.

The imposition of punishment in a criminal case affects the most fundamental human rights: life and liberty. Sentencing should be conducted with the judge and defendant facing one another and not in secret. It is incumbent upon a sentencing judge to choose his words carefully so that the defendant is aware of his sentence when he leaves the courtroom.

III.

Courts should not lightly overrule prior judicial decisions. Once a rule of law becomes established, it provides the basis for orderly, evenhanded, consistent and predictable adjudication. The rule that the oral sentence controls when there is a conflict is an easy rule to apply and avoids the murky area of determining the judge’s intentions. This rule should not be changed by the court except for the most compelling reasons, which are not present in this case.

The sentence in a federal criminal case is the punishment imposed orally by a sentencing judge in a defendant’s presence. The written judgment and commitment order is not the sentence. If there is an ambiguity in the sentence, then such extrinsic evidence as the judgment and commitment order, the judge’s intentions, or the defendant’s understanding of what he believes the sentence to be, may be consulted. In the absence of such ambiguity in the sentence, as when there is a conflict between the oral sentence and the judgment and commitment order, the sentence, as orally pronounced, shall not be altered.

The order of the district court denying defendant’s motion to correct clerical mistake is reversed. The district court is directed to amend the judgment and commitment order to reflect that Count III is to run consecutively to Count I.

REVERSED AND REMANDED.

. For example, see United States v. Lewis, 626 F.2d 940, 953 (D.C.Cir.1980); United States v. Pagan, 785 F.2d 378, 380 (2d Cir.1986); United States v. Morse, 344 F.2d 27, 29 n. 1 (4th Cir.1965); Schurmann v. United States, 658 F.2d 389; 391 (5th Cir.1981); Scott v. United States, 434 F.2d 11, 20 (5th Cir.1970); United States v. Glass, 720 F.2d 21, 22 n. 2 (8th Cir.1983); Payne v. Madigan, 274 F.2d 702, 705 (9th Cir.1960), aff'd by an equally divided court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961); United States v. McDonald, 672 F.2d 864, 867 (11th Cir.1982) (per curiam).

. Watkins v. Merry, 106 F.2d 360, 361 (10th Cir.1939). See also United States v. Mason, 440 F.2d 1293, 1299-1300 (10th Cir.), cert. denied sub nom. Edwards v. United States, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971); Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968); Byrd v. United States, 345 F.2d 481 (10th Cir.1965).

. At the sentencing proceeding, the district judge said:

Mr. Paul Villano ...

MR. VILLANO: Yes, sir.

THE COURT: It is the judgment and sentence of the Court that you are committed to the custody of the Attorney General, or his designated representative, on count one for a period of five years, and you are further fined the sum of $10,000.

It is the further judgment and sentence of the Court on count two that you be placed in the custody of the Attorney General, or his authorized representative, for a period of three years and fined a sum of $5,000. The sentence on count two shall run consecutively with the sentence on count one.

It is the further judgment and sentence of the Court on count three that you be placed in the custody of the Attorney General, or his designated representative, for a period of two years and find [sic] the sum of $5,000. The sentence on count three will run consecutively with the sentence on count one.

The defendant is ordered to stand committed until the fines imposed are paid or otherwise the defendant is released according to law.

The Court will recommend that the federal correctional institution at Fort Worth, Texas be the place of confinement. Mr. Villano, you are placed on voluntary surrender.

MR. VILLANO: Yes, sir.

Record vol. II at 27-28.

. Fed.R.Crim.P. 32(b)(1) provides as follows:

A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk.

. United States v. Lewis, 626 F.2d 940, 953 (D.C.Cir.1980) ("The oral sentence constitutes the judgment of the court and is the authority for the execution of the court’s sentence. The written commitment is mere evidence of such authority.”); Borum v. United States, 409 F.2d 433, 440 (D.C.Cir.1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969) ("It was the pronouncement of sentence ... that constituted the judgment of the court."); Gilliam v. United States, 269 F.2d 770, 772-73 (D.C.Cir.1959) ("the order of judgment and commitment is merely evidence of this sentence [the oral sentence]____”); Kennedy v. Reid, 249 F.2d 492, 495 (D.C.Cir.1957) ("The pronouncement of sentence constitutes the judgment of the court."); Rowley v. Welch, 114 F.2d 499, 501 (D.C.Cir.1940); United States v. Marquez, 506 F.2d 620, 622 (2d Cir.1974) ("the written judgment and commitment being nothing more than mere evidence of the sentence imposed orally by the judge.”); Sasser v. United States, 352 F.2d 796, 797 (6th Cir.1965), cert. denied, 385 U.S. 883, 87 S.Ct. 174, 17 L.Ed.2d 111 (1966) ("the pronouncement of sentence represents the judgment of the court and that the order of judgment is merely evidence of the sentence____”); Wilson v. Bell, 137 F.2d 716, 720 (6th Cir.1943) ("the judgment in a criminal case is the pronouncement by the judge from the bench, not the entry of the judgment by the clerk. The actual authority for execution of the judgment is the sentence, and the commitment functions to make the judgment of the court effective.’’); United States v. Weir, 724 F.2d 94, 95 (8th Cir.1984) (per curiam) (“the oral sentence and not the written order constitutes the actual judgment of the court____”); Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir.1979) ("the oral sentence pronounced by the sentencing judge constitutes the judgment, and anything inconsistent with the judgment which is included in a commitment order is a nullity.’’); Buie v. King, 137 F.2d 495, 499 (8th Cir.1943); United States v. Munoz Dela Rosa, 495 F.2d 253, 256 (9th Cir.1974) ("The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant.”); Spriggs v. United States, 225 F.2d 865, 868 (9th Cir.1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956) (“The journal entry or signed document is not the order of the court. The order of the court is the pronouncement made by the judge in open court.”); Walden v. Hudspeth, 115 F.2d 558, 559 (10th Cir.1940) (”[t]he judgment is the pronouncement of the court from the bench. The clerk’s entry is not the judgment but merely the formal evidence thereof.”).

. An ambiguity may take many forms. The following include some of the circumstances when an ambiguity may exist:

(1) when the words used have more than one meaning;

(2) when otherwise unambiguous words are used in an unusual way;

(3) the extent of the sentence cannot be ascertained from the language used; or

(4) the plain meaning of the words used lead to an irrational or absurd result.

. Judge Logan, in his concurrence, recommends reference to the judgment and commitment order when there is an ambiguity or when the sentencing judge does not orally state whether sentences are concurrent or consecutive. In this case, the sentencing judge orally stated how the sentences were to be served; namely, that Count III would run consecutively with Count I. The issue whether the judgment and commitment order should be consulted when the sentencing judge does not orally state that sentences should be concurrent or consecutive is not now before us, and we express no view on that issue.