United States of America v. Sterling Robinson

*The Honorab le Judith M. Barzilay, Judge for the United States Court
of International Trade, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0147P (6th Cir.)
File Name: 04a0147p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STERLING ROBINSON,
Defendant-Appellant.
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No. 03-4593
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 95-00079—George C. Smith, District Judge.
Argued: April 27, 2004
Decided and Filed: May 21, 2004
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
Judge.*
_________________
COUNSEL
ARGUED: Gordon Hobson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
2 United States v. Robinson No. 03-4593
Dana M. Peters, UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellee. ON BRIEF: Gordon Hobson,
FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Dana M. Peters, UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Sterling
Robinson pled guilty in July of 1997 to a drug trafficking
crime. He was granted an early release from his term of
imprisonment in September of 2001. On September 26, 2002,
Robinson admitted at a hearing held before a magistrate judge
that he had violated the terms of his supervised release. The
magistrate judge recommended that Robinson’s supervised
release be revoked and that he be sentenced to a one-year
term of additional imprisonment to be followed by a four-year
term of supervised release.
On January 8, 2003, the district court issued an order
adopting the magistrate judge’s Report and Recommendation
“insofar as it recommends revocation.” The district court
amended its order on November 25, 2003, adding a two-year
term of supervised release to the sentence that it had imposed
on January 8, 2003. Robinson appeals his amended sentence
on the ground that the district court lacked jurisdiction at that
point to amend the sentence. For the reasons set forth below,
we REVERSE the judgment of the district court and
REMAND with instructions to reinstate the sentence that was
imposed on January 8, 2003.
I. BACKGROUND
Robinson pled guilty to one count of unlawful distribution
of more than 50 grams of crack cocaine on July 23, 1997. He
was sentenced to 96 months in prison, to be followed by 60

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No. 03-4593 United States v. Robinson 3
months of supervised release. On September 21, 2001,
Robinson was granted an early release from prison and began
his term of supervised release. The United States Probation
Office petitioned the district court on August 16, 2002 to
revoke Robinson’s supervised release because he was using
cocaine and marijuana and was failing to participate in a
substance-abuse program.
On September 26, 2002, Robinson stipulated to the
violations at a revocation hearing before a magistrate judge.
The magistrate judge issued a Report and Recommendation
on November 20, 2002, proposing that Robinson’s
“supervised release be revoked and that [he] be sentenced to
a term of imprisonment of 12 months, such term of
imprisonment to be followed by another term of supervised
release of 4 years.” On January 8, 2003, the district court
adopted the report in part, stating: “The Court ADOPTS the
Magistrate Judge’s report and recommendation insofar as it
recommends revocation, and accordingly the Court
REVOKES defendant’s supervised release.”
Nine months later, based upon an inquiry from the Bureau
of Prisons regarding supervised release, the district court gave
notice that it intended to modify its January 8, 2003
judgment. A hearing on its proposed modification was held
on November 25, 2003. At the hearing, the district judge
stated the following:
The matter was brought to the Court’s attention by a
representative of the Bureau of Prisons, who asked the
Court for clarification of defendant’s term of supervised
release after he completes his 12-month term of
imprisonment. Upon review of the Court’s January 8,
2003 order, it appears that the Court has omitted the term
of supervised release to be served by the defendant.
. . . .
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Rule 36 of the Federal Rules of Criminal Procedure
provides that 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 an oversight or
omission.
The Court therefore finds that it has authority under
Rule 36 to correct the defendant’s supervised release
term that was omitted from his sentence on the
revocation. The Court provided appropriate notice to all
parties of this hearing on October 21, 2003. It was the
Court’s intention to sentence the defendant to a two-year
term of supervised release. Therefore, the Court’s
January 8, 2003 order stands amended.
This appeal followed.
II. ANALYSIS
A. Standard of review
The government argues that we should review the “district
court’s finding of clerical error . . . under a ‘clearly erroneous’
standard.” Robinson, however, does not seek review of the
district court’s finding that it had the intention on January 8,
2003 to include a term of supervised release. Instead,
Robinson seeks review of the district court’s legal conclusion
that its failure to express an intended element of a sentence
constitutes a “clerical error” under Rule 36. Conclusions of
law are reviewed de novo. See United States v. Portillo, 363
F.3d 1161,1164 (11th Cir. 2004) (applying de novo review to
determine whether the district court had jurisdiction under
Rule 36 to correct the original written judgment that
sentenced the defendant).

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No. 03-4593 United States v. Robinson 5
B. Does a district court’s power under Rule 36 to
“correct a clerical error in a judgment” include the
authority to amend a sentencing order to conform
with the court’s unexpressed intention?
“Within 7 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other
clear error.” Fed.R.Crim.P. 35(a). Beyond seven days,
however, the court has jurisdiction to amend the sentence
only in conformity with Rule 36, which provides as follows:
“Clerical Error. 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.”
Fed.R.Crim.P. 36. Rule 36 was amended approximately one
year before the district court’s attempt to correct its error (the
revised language went into effect on December 1, 2002).
Previously, the rule stated as follows: “Clerical mistakes in
judgments, orders or other parts of the record and errors
arising from oversight or omission may be corrected by the
court at any time and after such notice, if any, as the court
orders.” The advisory committee notes, however, advise that
the changes “are intended to be stylistic only.”
Although the federal rules do not define what constitutes a
clerical error, this court has held that “a clerical error must not
be one of judgment or even of misidentification, but merely
of recitation, of the sort that a clerk or amanuensis might
commit, mechanical in nature.” United States v. Coleman,
No. 99-5715, 2000 WL 1182460, at *2 (6th Cir. Aug. 15,
2000) (unpublished) (quoting United States v. Burd, 86 F.3d
285, 288 (2d Cir.1996)). Rule 36 has been consistently
interpreted as dealing only with clerical errors, not with
mistakes or omissions by the court. See 3 Charles Alan
Wright, Nancy J. King & Susan R. Klein, Federal Practice &
Procedure § 611 (3d ed. 2004) (“It is only a clerical error that
may be corrected at any time under [Rule 36]. An error
arising from oversight or omission by the court, rather than
6 United States v. Robinson No. 03-4593
through a clerical mistake, is not within the purview of the
rule.”).
Robinson argues that if a district court fails to express its
intention to include a new term of supervised release as part
of the sentence, then the absence of such a term in the
sentence is not a simple clerical error amenable to correction
under Rule 36. Conversely, the government argues that
because the district court found that “[i]t was the Court’s
intention to sentence the defendant to a two-year term of
supervised release,” the omission of that term constitutes a
clerical error regardless of whether the district court had ever
expressed that intention.
This court has already noted its agreement with the Second
and Seventh Circuits that Rule 36 “is not a vehicle for the
vindication of the court’s unexpressed sentencing
expectations, or for the correction of errors made by the court
itself,” Coleman, 2000 WL 1182460, at *2 (quoting United
States v. Daddino, 5 F.3d 262, 264 (7th Cir.1993)); see also
United States v. Werber, 51 F.3d 342, 343 (2d Cir. 1995)
(“Rule 36 authorizes a court to correct only clerical errors in
the transcription of judgments, not to effectuate its
unexpressed intentions at the time of sentencing.”).
In support of its position, the government cites an earlier
unpublished opinion of this court, United States v. Libby, No.
95-1751, 1996 WL 117499 (6th Cir. Mar. 15, 1996). But
Libby is silent on the question of unexpressed sentencing
intentions, because that case involved “a discrepancy between
an oral sentence and the written order.” Id. at *2. This court
in Libby affirmed the district court’s decision to amend a
sentence by modifying a term of supervised release so that it
conformed with what had been orally discussed at Libby’s
hearing on his supervised-release violation. Id. Libby
therefore does not support the government’s position that
Rule 36 authorizes the amendment of a sentencing order to
conform with an unexpressed sentencing intention.

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No. 03-4593 United States v. Robinson 7
We also note that if the district court had made its judgment
self-sufficient by setting forth the terms of the sentence rather
than simply adopt by reference a portion of the magistrate’s
Report and Recommendation, the oversight that occurred in
this case would most likely never have happened. See 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 2785 (2d ed. 1995) (“[T]he
separate judgment required by the 1963 amendment [of Rule
58 of the Federal Rules of Civil Procedure] should be self-
sufficient and should not merely incorporate other documents
by reference . . . .”); Fed.R.Civ.P. 58(a)(1) (“Every judgment
and amended judgment must be set forth on a separate
document, but a separate document is not required for an
order disposing of [certain enumerated motions].”). This case
thus provides an instructive illustration of why the dispositive
terms of a judgment should be self-sufficient.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
judgment of the district court and REMAND with
instructions to reinstate the sentence that was imposed on
January 8, 2003.

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