RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Robinson No. 03-4593 ELECTRONIC CITATION: 2004 FED App. 0147P (6th Cir.) File Name: 04a0147p.06 Dana M. Peters, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: Gordon Hobson, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, UNITED STATES COURT OF APPEALS Ohio, for Appellant. Dana M. Peters, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

FOR THE SIXTH CIRCUIT _________________ _________________ UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 03-4593 RONALD LEE GILMAN, Circuit Judge. Sterling v. - 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, STERLING ROBINSON, - Defendant-Appellant. - Robinson admitted at a hearing held before a magistrate judge that he had violated the terms of his supervised release. The N magistrate judge recommended that Robinson’s supervised Appeal from the United States District Court release be revoked and that he be sentenced to a one-year for the Southern District of Ohio at Columbus. term of additional imprisonment to be followed by a four-year No. 95-00079—George C. Smith, District Judge. term of supervised release.

Argued: April 27, 2004 On January 8, 2003, the district court issued an order adopting the magistrate judge’s Report and Recommendation Decided and Filed: May 21, 2004 “insofar as it recommends revocation.” The district court amended its order on November 25, 2003, adding a two-year Before: GUY and GILMAN, Circuit Judges; BARZILAY, term of supervised release to the sentence that it had imposed Judge.* 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 COUNSEL REMAND with instructions to reinstate the sentence that was imposed on January 8, 2003.

ARGUED: Gordon Hobson, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. I. BACKGROUND Robinson pled guilty to one count of unlawful distribution of more than 50 grams of crack cocaine on July 23, 1997. He * The Honorab le Judith M. Barzilay, Judge for the United States Court was sentenced to 96 months in prison, to be followed by 60 of International Trade, sitting by designation.

No. 03-4593 United States v. Robinson 3 4 United States v. Robinson No. 03-4593 months of supervised release. On September 21, 2001, Rule 36 of the Federal Rules of Criminal Procedure Robinson was granted an early release from prison and began provides that after giving any notice it considers his term of supervised release. The United States Probation appropriate, the Court may at any time correct a clerical Office petitioned the district court on August 16, 2002 to error in a judgment, order, or other part of the record, or revoke Robinson’s supervised release because he was using correct an error in the record arising from an oversight or cocaine and marijuana and was failing to participate in a omission. substance-abuse program.

The Court therefore finds that it has authority under On September 26, 2002, Robinson stipulated to the Rule 36 to correct the defendant’s supervised release violations at a revocation hearing before a magistrate judge. term that was omitted from his sentence on the The magistrate judge issued a Report and Recommendation revocation. The Court provided appropriate notice to all on November 20, 2002, proposing that Robinson’s parties of this hearing on October 21, 2003. It was the “supervised release be revoked and that [he] be sentenced to Court’s intention to sentence the defendant to a two-year a term of imprisonment of 12 months, such term of term of supervised release. Therefore, the Court’s imprisonment to be followed by another term of supervised January 8, 2003 order stands amended. release of 4 years.” On January 8, 2003, the district court adopted the report in part, stating: “The Court ADOPTS the This appeal followed.

Magistrate Judge’s report and recommendation insofar as it recommends revocation, and accordingly the Court II. ANALYSIS REVOKES defendant’s supervised release.”

A. Standard of review Nine months later, based upon an inquiry from the Bureau of Prisons regarding supervised release, the district court gave The government argues that we should review the “district notice that it intended to modify its January 8, 2003 court’s finding of clerical error . . . under a ‘clearly erroneous’ judgment. A hearing on its proposed modification was held standard.” Robinson, however, does not seek review of the on November 25, 2003. At the hearing, the district judge district court’s finding that it had the intention on January 8, stated the following: 2003 to include a term of supervised release. Instead, Robinson seeks review of the district court’s legal conclusion The matter was brought to the Court’s attention by a that its failure to express an intended element of a sentence representative of the Bureau of Prisons, who asked the constitutes a “clerical error” under Rule 36. Conclusions of Court for clarification of defendant’s term of supervised law are reviewed de novo. See United States v. Portillo, 363 release after he completes his 12-month term of F.3d 1161,1164 (11th Cir. 2004) (applying de novo review to imprisonment. Upon review of the Court’s January 8, determine whether the district court had jurisdiction under 2003 order, it appears that the Court has omitted the term Rule 36 to correct the original written judgment that of supervised release to be served by the defendant. sentenced the defendant).

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No. 03-4593 United States v. Robinson 5 6 United States v. Robinson No. 03-4593 B. Does a district court’s power under Rule 36 to through a clerical mistake, is not within the purview of the “correct a clerical error in a judgment” include the rule.”). authority to amend a sentencing order to conform with the court’s unexpressed intention? Robinson argues that if a district court fails to express its intention to include a new term of supervised release as part “Within 7 days after sentencing, the court may correct a of the sentence, then the absence of such a term in the sentence that resulted from arithmetical, technical, or other sentence is not a simple clerical error amenable to correction clear error.” Fed.R.Crim.P. 35(a). Beyond seven days, under Rule 36. Conversely, the government argues that however, the court has jurisdiction to amend the sentence because the district court found that “[i]t was the Court’s only in conformity with Rule 36, which provides as follows: intention to sentence the defendant to a two-year term of “Clerical Error. After giving any notice it considers supervised release,” the omission of that term constitutes a appropriate, the court may at any time correct a clerical error clerical error regardless of whether the district court had ever in a judgment, order, or other part of the record, or correct an expressed that intention. error in the record arising from oversight or omission.”

Fed.R.Crim.P. 36. Rule 36 was amended approximately one This court has already noted its agreement with the Second year before the district court’s attempt to correct its error (the and Seventh Circuits that Rule 36 “is not a vehicle for the revised language went into effect on December 1, 2002). vindication of the court’s unexpressed sentencing Previously, the rule stated as follows: “Clerical mistakes in expectations, or for the correction of errors made by the court judgments, orders or other parts of the record and errors itself,” Coleman, 2000 WL 1182460, at *2 (quoting United arising from oversight or omission may be corrected by the States v. Daddino, 5 F.3d 262, 264 (7th Cir. 1993)); see also court at any time and after such notice, if any, as the court United States v. Werber, 51 F.3d 342, 343 (2d Cir. 1995) orders.” The advisory committee notes, however, advise that (“Rule 36 authorizes a court to correct only clerical errors in the changes “are intended to be stylistic only.” the transcription of judgments, not to effectuate its unexpressed intentions at the time of sentencing.”).

Although the federal rules do not define what constitutes a clerical error, this court has held that “a clerical error must not In support of its position, the government cites an earlier be one of judgment or even of misidentification, but merely unpublished opinion of this court, United States v. Libby, No. of recitation, of the sort that a clerk or amanuensis might 95-1751, 1996 WL 117499 (6th Cir. Mar. 15, 1996). But commit, mechanical in nature.” United States v. Coleman, Libby is silent on the question of unexpressed sentencing No. 99-5715, 2000 WL 1182460, at *2 (6th Cir. Aug. 15, intentions, because that case involved “a discrepancy between 2000) (unpublished) (quoting United States v. Burd, 86 F.3d an oral sentence and the written order.” Id. at *2. This court 285, 288 (2d Cir. 1996)). Rule 36 has been consistently in Libby affirmed the district court’s decision to amend a interpreted as dealing only with clerical errors, not with sentence by modifying a term of supervised release so that it mistakes or omissions by the court. See 3 Charles Alan conformed with what had been orally discussed at Libby’s Wright, Nancy J. King & Susan R. Klein, Federal Practice & hearing on his supervised-release violation. Id. Libby Procedure § 611 (3d ed. 2004) (“It is only a clerical error that therefore does not support the government’s position that may be corrected at any time under [Rule 36]. An error Rule 36 authorizes the amendment of a sentencing order to arising from oversight or omission by the court, rather than conform with an unexpressed sentencing intention.

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 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.