Thursday, July 14, 2005

Correcting a Sentence under Rule 35(a)

United States v. Lloyd Baldwin, No. 03-3721 (July 12, 2005): The district court calculated Mr. Baldwin’s guidelines and sentenced him to 78 months on each of four counts, the sentences to run concurrently. After sentencing, the court realized that the maximum sentence on each count was 60 months. It then amended the judgment to impose 60 months on one count and 18 months on the other counts, the 18 months consecutive to the 60 months. Under Federal Rule of Criminal Procedure 35(a), the court has seven days after the pronouncement of sentence to correct "clear error." Because the court acted outside this deadline, the amendment to the judgment was ineffective, and the Court remanded to correct the original sentence, which was illegal.

Two points about Rule 35(a) bear noting: the 7-day period begins to run from the date when sentence is pronounced, not when it is entered on the docket. The Seventh Circuit, in conflict with other Circuits, had previously used the date of docketing as the trigger for the Rule 35(a) remedy, but Rule 35(a) was amended in 2004 to disapprove the Seventh Circuit reading. Second, the judge must act within the 7-day period. It is not enough to file the motion within the 7-day period. Counsel must insure that a timely motion is ruled on in a timely fashion.