United States v. Charmar Brown

United States Court of Appeals

For the Eighth Circuit

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No. 17-3645

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Charmar Brown

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the District of Nebraska - Omaha

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Submitted: November 15, 2018

Filed: February 15, 2019

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Before BENTON, BEAM, and ERICKSON, Circuit Judges.

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BENTON, Circuit Judge.

In 2007, a jury convicted Charmar Adonis Lareese Brown of one count of

conspiring to distribute more than 1,000 kilograms of marijuana (count 1), one count

of possessing with intent to distribute more than 100 kilograms of marijuana (count

6), and three counts of using and carrying a firearm during a drug-trafficking crime

(counts 2, 4, 7). At sentencing, the district court orally sentenced him to concurrent

terms of life and 480 months on counts 1 and 6, and to consecutive terms of 120

months, 300 months, and 300 months on counts 2, 4, and 7. The judgment form

erroneously said that the sentence on count 6 was life.

Brown appealed. This court vacated his conviction on count 7, but otherwise

affirmed. United States v. Brown, 560 F.3d 754, 772 (8th Cir. 2009). On remand,

at the resentencing hearing, the parties agreed the court’s only job was to vacate the

sentence on count 7. The court entered a new judgment, removing the 300-month

sentence on count 7 but leaving the other sentences unchanged. Brown did not

appeal.

Brown filed his first 28 U.S.C. § 2255 motion in 2011. The district court

denied it; this court denied a certificate of appealability. He filed a second 2255

motion in 2013. The district court denied it as a successive 2255 motion that the

court of appeals had not authorized under 2255(h). This court denied a certificate of

appealability. He filed a third 2255 motion in 2016, asserting (in part) that sentencing

and resentencing counsel were ineffective for failing to object to the unconstitutional

life sentence on count 6. The district court denied the motion as successive without

authorization, and denied a certificate of appealability. Brown asked this court to

remand or, in the alternative, to issue a certificate of appealability. This court

directed the district court “to correct its judgment to reflect that Appellant Charmar

Brown’s sentence on Count 6 is 480 months.” This court then denied the motion to

remand as moot and dismissed the appeal. The district court corrected the judgment

on count 6 as instructed and filed a Second Amended Judgment with a sentence of

480 months on count 6.

Brown now appeals that Judgment. He argues that it is a substantive change

and a new judgment. He then seeks to raise numerous challenges to the Second

Amended Judgment.

Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal

prisoner must receive certification from the court of appeals to file a “second or

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successive” 2255 motion. 28 U.S.C. § 2255(h). “Second or successive” is a question

of law this court reviews de novo. See United States v. Sellner, 773 F.3d 927, 931

(8th Cir. 2014). A 2255 petition challenging a new sentence is not successive. See

Magwood v. Patterson, 561 U.S. 320, 339, 341-42 (2010) (If petitioner is resentenced

between first and second 2254 petitions, second petition—raising claims that could

have been raised in a previous petition—is not successive under 2244(b) because it

is the “first application challenging that intervening judgment.”); Dyab v. United

States, 855 F.3d 919, 923 (8th Cir. 2017) (“import[ing] Magwood’s inquiry about

entry of a new judgment to the 2255 context.”). The inquiry is “whether a district

court has entered a new, intervening judgment.” Id. For a 2255 motion, “it is well

established that ‘[t]he sentence is the judgment.’” Id., quoting Berman v. United

States, 302 U.S. 211, 212 (1937). If Brown’s Second Amended Judgment is a new

sentence, then his petition is not successive.

Brown’s Second Amended Judgment is not a new sentence. The judge orally

sentenced him to 480-months’ imprisonment on count 6. “The oral pronouncement

by the sentencing court is the judgment of the court.” United States v. Tramp, 30

F.3d 1035, 1037 (8th Cir. 1994). See also Fed. R. Crim. P. 35(c) (“As used in this

rule, ‘sentencing’ means the oral announcement of the sentence.”). Though the

written judgment said life on count 6, “when an oral sentence and the written

judgment conflict, the oral sentence controls.” United States v. Mayo, 642 F.3d 628,

633 (8th Cir. 2011). Here, the oral sentence of 480 months’ imprisonment controlled.

This court’s order directing the district court “to correct its judgment to reflect that

Appellant Charmar Brown’s sentence on Count 6 is 480 months” did not change the

sentence. Rather, that order ensured that the written judgment reflected his sentence

of 480 months.

The district court noted that the correction was under Criminal Rule 35(a).

That was wrong. Rule 35(a) authorizes a court to “correct a sentence that resulted

from arithmetical, technical, or other clear error” within “14 days after sentencing.”

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Fed. R. Crim. P. 35(a). The court here corrected the judgment years after

sentencing. See, e.g., United States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir.

2015) (“Under Federal Rule of Criminal Procedure 35(a), the district court lost any

power it may have had to correct an ‘arithmetical, technical, or other clear error’ in

the sentence fourteen days after pronouncing sentence.”); United States v. Winfield,

665 F.3d 107, 114 (4th Cir. 2012) (Rule 35(a) does not authorize district court to

amend sentence four months later).

This court may affirm the Second Amended Judgment for any reason supported

by the record. See, e.g., United States v. Price, 851 F.3d 824, 826 (8th Cir. 2017).

The district court’s correction of the written judgment was authorized by Criminal

Rule 36. See Fed. R. Crim. P. 36 (“[T]he 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.”).

“Correction of a clerical or typographical error pursuant to Criminal Rule 36

. . . does not justify disregarding prior § 2255 motions in the ‘second or successive’

calculus.” Dyab, 855 F.3d at 923. “Fixing typographical errors and the like does not

substantively alter a prisoner’s sentence, so a § 2255 motion filed after such a

correction is still a challenge to the original judgment.” Id., citing Marmolejos v.

United States, 789 F.3d 66, 70-71 (2d Cir. 2015). When this court directed the

district court to correct its judgment, it was correcting an error in the record. This

correction in the Second Amended Judgment did not create a new sentence for the

purposes of Brown’s 2255 petition. His petition is successive, and his substantive

arguments are barred.

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The Second Amended Judgment is affirmed.

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