USA v. Jamilla Ciar Hall

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11713
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMILLA CIAR HALL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cr-00016-AW-MAF-1
____________________
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2 Opinion of the Court 21-11713
Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM,
Circuit Judges.
PER CURIAM:
Jamilla Ciar Hall appeals an order that corrected her judg-
ment of restitution.
See Fed. R. Crim. P. 36. The district court cor-
rected its written judgment to clarify that restitution was owed im-
mediately. We affirm.
Hall pleaded guilty to one count of conspiring to commit
mail fraud, 18 U.S.C. § 1349, five counts of mail fraud,
id. §§ 2, 1341,
and one count of aggravated identity theft,
id. § 1028A, for her
fraudulent liquidation of five prepaid college accounts owned by
other persons. Hall agreed to pay restitution of $42,500 to Intuition
College Savings Solutions and $353.40 to an individual victim.
Hall’s presentence investigation report recommended waiving the
fine for Hall’s offense level of 13 due to her inability to pay,
see
U.S.S.G. § 5E1.2(c)(3); imposing a mandatory $700 special assess-
ment, 18 U.S.C. § 3013; and requiring Hall, as a condition of her
supervised release, to “make payments toward any unpaid restitu-
tion in an amount of not less [than] $150.00 per month, to begin
within 60 days of release from imprisonment.”
At sentencing, the district court denied Hall’s request to re-
duce the payments she was required to make “towards any unpaid
restitution [of] no less than $150 per month” during her term of
supervised release. Hall acknowledged she owed “a large
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21-11713 Opinion of the Court 3
restitution amount” that, “if she did come into money, . . . would
be due and payable right away” and that “[a]lso at the end of her
supervised release, whatever is left, . . . [would] be an enforceable
restitution judgment.” Hall feared having inadequate resources to
make monthly payments and “end[ing] up here on a violation of
supervised release.” The district court reassured Hall that she was
“capable of getting good work” and offered to reassess the amount
of her payments later “if it need[ed] to be revisited . . . .”
The district court sentenced Hall to six concurrent terms of
nine months of imprisonment for her conspiracy and mail fraud
crimes and to a consecutive term of 24 months of imprisonment
for her identity theft crime, followed by three years of supervised
release. The district court announced that Hall would be “required
to comply with all . . . the recommended conditions that are set out
in the presentence investigation report” during her term of super-
vised release. The district court ordered Hall to pay the mandatory
“$100 special assessment for each of the counts” for “a total of
$700,” but it imposed no “fine based on [its] conclusion that [Hall
was] unable to pay a fine.” The district court also “ordered [Hall]
to pay restitution in the amount of $42,500 to the Intuition College
Savings Solutions” and $353.40 to an individual victim.
The written judgment required Hall to pay $43,553.40 in
criminal monetary penalties. Consistent with Hall’s presentence in-
vestigation report, the judgment included as an additional condi-
tion of supervised release that she “make payments toward any un-
paid restitution in an amount of not less than $150.00 per month,
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4 Opinion of the Court 21-11713
to begin within 60 days of release from imprisonment.” But the
schedule of payments ordered Hall to make a “[l]ump sum pay-
ment of $700 due immediately, balance due” by “[p]ayment in
equal monthly . . . installments of $150 over a period of years . . .
to commence 60 days . . . after [her] release from imprisonment to
a term of supervision.”
The government moved to correct the written judgment to
reflect that Hall’s restitution was “due and payable in full immedi-
ately.”
See Fed. R. Crim. P. 36. The government asked the district
court to make the correction to reflect its intention at sentencing
to make all of Hall’s restitution to be due immediately and to im-
pose as a condition of supervised release that she continue to re-
duce any unpaid restitution by making minimum monthly pay-
ments of $150. Hall opposed the motion on the ground that the
government sought a “substantive change in the sentence.” In her
response, Hall “concede[d] that [her] counsel was aware of the
[District] Court’s general practice to make restitution payable im-
mediately[, but contended] that is apparently not what was orally
pronounced at [her] sentencing.”
The district court granted the motion to correct the written
judgment.
See id. The district court identified a discrepancy be-
tween its written judgment, which required Hall to pay restitution
in installments, and its oral pronouncement, which never “men-
tion[ed] installments.” Based on the statutory presumption that res-
titution payments are due “immediately, unless, in the interest of
justice, the court provides for payment on a date certain or in
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21-11713 Opinion of the Court 5
installments,” 18 U.S.C. § 3572(d)(1), the district court determined
that, “by not imposing another payment schedule at sentencing,
[it] imposed the default: immediate payment.” The district court
also clarified that the condition of supervised release requiring Hall
“to make payments toward
unpaid restitution [did] not mean that
all restitution was not due immediately,” as evidenced by defense
counsel’s remark that if Hall “came into money [restitution] would
be due and payable right away.” Because “the written judgment
[did] not square with what was announced at sentencing,” the dis-
trict court corrected the written judgment to “specify[] that Hall’s
monetary penalties are due immediately.”
We review
de novo the correction of a written judgment
under Federal Rule of Criminal Procedure 36.
United States v. Por-
tillo, 363 F.3d 1161, 1164 (11th Cir. 2004).
Rule 36 permits the district court “at any time [to] 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.”
Fed. R. Crim. P. 36. “If the oral sentence is ambiguous, then, in an
attempt to discern the intent of the district court at the time it im-
posed sentence, the reviewing court may consider extrinsic evi-
dence . . . .”
United States v. Khoury, 901 F.2d 975, 977 (11th Cir.
1990) (citing
United States v. Villano, 816 F.2d 1448, 1453 (10th Cir.
1987)). We look at “[s]uch extrinsic evidence as the judgment . . . ,
the judge’s intentions, or the defendant’s understanding of what he
believes the sentence to be . . . .”
Villano, 816 F.2d at 1453.
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6 Opinion of the Court 21-11713
The record establishes that the district court intended, and
the parties understood, that all of Hall’s restitution would be paya-
ble immediately and that she would be required, during her term
of supervised release, to reduce the amount of unpaid restitution
by making minimum monthly payments of $150. Hall acknowl-
edged at sentencing that restitution was “due and payable right
away” when she asked the district court to reduce the monthly pay-
ment plan proposed “in the presentence report” so she would not
“end up . . . [with] a violation of supervised release.” The plan in
the presentence report, which the district court expressly adopted
and quoted verbatim in its written judgment, provided for Hall
during supervised release to reduce “any
unpaid restitution.” That
language necessarily implied that Hall owed restitution while in
prison where she might pay at least some of it before starting her
supervised release. Indeed, restitution ordinarily is due immedi-
ately after sentencing, 18 U.S.C. § 3572(d)(1), and defense counsel
knew the district court had a “general practice to make restitution
payable immediately.”
Hall argues that the district court “did not pronounce resti-
tution due immediately because [it] adopted the probation officer’s
finding that Hall did not have the present ability to pay,” but we
disagree. The district court adopted the recommendations in Hall’s
presentence investigation report to waive a fine and to require min-
imum payments of “any unpaid restitution” during supervised re-
lease. The district court made Hall’s restitution due immediately
despite her financial status because “[i]mmediate payment does not
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21-11713 Opinion of the Court 7
mean immediate payment in full; rather it means payment to the
extent that the defendant can make it in good faith, beginning im-
mediately,”
United States v. McIntosh, 198 F.3d 995, 1004 (7th Cir.
2000) (internal quotation marks omitted and alteration adopted).
And by waiving the fine, the district court enabled Hall to devote
her scant financial resources to make her victims whole sooner.
In
Portillo, we affirmed the use of Rule 36 to correct a writ-
ten judgment to comport with the record. 363 F.3d at 1165. The
sentence that the district court orally pronounced and its written
judgment required Portillo to pay restitution “jointly and sever-
ally” with his coconspirator.
Id. at 1164. But because Portillo’s co-
conspirator “had not been ordered to pay restitution” when sen-
tenced two years earlier, the district court
sua sponte entered a cor-
rected judgment that deleted the phrase “jointly and severally”
from its terms of restitution.
Id. at 1165. We stated the “correction
was proper under Rule 36” because it “allow[ed] the [district] court
to ‘correct an error in the record arising from oversight or omis-
sion.’”
Id. (quoting Fed. R. Crim. P. 36). And we explained that the
correction was not substantive because Portillo “was fully liable for
payment of the restitution amount” in both the original and the
amended judgment orders.
Id.
As in
Portillo, the district court could correct its written
judgment under Rule 36 to conform to the record. The “correction
[of Hall’s written judgment] was proper under Rule 36” because
the district court was “correct[ing] an error in the record arising
from [its] oversight” to make Hall’s restitution, as her counsel
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8 Opinion of the Court 21-11713
stated at sentencing, “due and payable right away.”
See Portillo,
363 F.3d at 1165 (quoting Fed. R. Crim. P. 36). And the correction
“did not make [Hall’s] sentence more onerous” because it did not
change the amount of restitution owed.
See id.
Hall argues that the district court violated her “constitu-
tional right to be present” when it corrected the clerical error in its
judgment, but our precedents foreclose this argument. We held in
Portillo that, “while it may be preferable to have the defendant pre-
sent when the court corrects clerical errors in the judgment under
Rule 36, ‘the defendant’s absence cannot rise to a deprivation of
due process.’”
Id. at 1166 (quoting
Cook v. United States, 426 F.2d
1358, 1360 (5th Cir. 1970)). We explained that “the right to be pre-
sent at one’s sentencing ‘does not translate into a right to be present
whenever judicial action modifying a sentence is taken.’”
Id. (quot-
ing
United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991)).
Because the “Rule 36 order . . . did not amount to a resentencing
wherein [Hall’s] sentence was substantively changed,”
id., she had
no right to be present when the district court corrected its written
judgment.
We AFFIRM the order correcting Hall’s judgment of resti-
tution.
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