On Appeal from the United States District Court for the District of New Jersey, D.C. Crim. No. 83-00291-01.
18 U.S.C. § 3651, the so-called "split sentence" statute, empowers the judge to
impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.
Where a defendant has been convicted of only one count, the split sentence is the only vehicle by which a defendant can be both incarcerated and placed on probation. See A. Partridge, A. Chaset & W. Eldridge, The Sentencing Options of Federal District Judges at 6 (Federal Judicial Center, June 1983). In this single count case, the district court had sentenced defendant Pierre Guevremont to an eighteen month sentenced of incarceration, but, pursuant to Federal Rule of Criminal Procedure 35(b),*fn1 desired to reduce the sentence to time served (52 days) with a probationary term to follow (with attendant conditions including restitution of a huge sum garnered by Guevremont's fraud). However, in imposing the reduced sentence, the able district judge inadvertently failed to pronounce what is required by § 3651 - that the execution of the balance of the period of incarceration would be suspended and the defendant placed on probation. Instead, the court orally modified the sentence to time served and, in the written rendition, vacated the original sentenced in order to reimpose a term of 52 days. It therefore suspended nothing - given the way in which sentence was reimposed, their was nothing left to suspend - but nonetheless also imposed a term of probation with a restitution condition.
Guevremont moved to vacate the probationary term, and therefore the restitution condition, as illegal, claiming that it had exhausted its power to sentence on the single count. In his view, the successive probationary term was a second sentence on a single count conviction that constituted an impermissible increase in sentence. The district court, purporting to rely on Federal Rule of Criminal Procedure 36, which is entitled "Clerical Mistakes," entered a corrected judgment correcting the amended sentencing order by performing the proper steps - i.e., suspending the portion of the original sentence that Guevremont had not served and placing on probation for three years with a condition of restitution. Guevremont appeals from the corrected judgment, alleging that the court's power to correct the sentence extended only to vacatur of the allegedly illegal order of probation and therefor accompanying order of restitution.
We conclude that Rule 36 does not support the district court's position, for the district court revamped the entire sentence instead of confining itself to the correction of a clerical error. However, we believe that Guevremont's sentence, as imposed after the initial Rule 35 proceeding, was illegal and that the district court therefore had the power to correct that illegal sentence under Rule 35 (a). Rejecting Guevrmont's arguments, we conclude that there was no constitutional or other inhibition restricting this correctional of sentence because inhibition restricting possible judicial vindictiveness is removed by the fact that (1) the sentencing judge's intentions were made clear, (2) the correction simply makes the sentence conform to the sentencing judge's original and interdependent sentencing plan, and (3) Guevremont was neither suprised nor prejudiced by the change in his sentence, for he had induced the court to reduce the sentence by his promise of restitution.
We will therefore affirm the challenged judgment.
I. FACTS AND PROCEDURAL HISTORY
The facts are not in dispute. The First Interstate Bank of California erroneously credited monies to Guevremont's account. Unlike the familiar $200 "bank error in your favor" in the board game "Monopoly," this error involved approximately $325,000. After squandering the money, Guevremont informed the authorities. Thereafter, he attempted to bargain with the bank with respect to the amount and mode of repayment and, after his attempts failed, he was charged with wire fraud, 18 U.S.C. § 1343.
On November 23, 1983, after pleading guilty to one count of wire fraud, Guevremont was sentenced by the district court to eighteen months in prison. Twenty days later, Guevremont moved for a reduction of sentence pursuant to Federal Rule of Criminal Procedure 35(b). On January 13, 1984, the district court held a hearing during which testimony was received to the effect that: (1) since Guevremont was a Canadian citizen and had received a sentence of greater than one year, he would not be allowed back in the United States if his sentence were not reduced; (2) during Guevremont's trip to his ultimate place of confinement, the U.S. correctional institution at Sandstone, Minnesota, he was house in isolation at several federal prisons, causing him considerable suffering; and (3) the prison he was finally transferred to was so far from his family that it was a physical hardship for them to visit him.
During the hearing, Guevremont's attorney stated on Guevremont's behalf:
I called the bank after the sentencing and said that I have talked to Mr. Guevremont and when he gets out he will pay you [i.e., the bank] back, that he will pay you anyway. He owes you the money and no matter what, he will start making payment as soon as he gets out of jail . . .Even after . . . your Honor's sentence, Mr. Guevremont said, tell the bank they could -- I am going to pay them bank when I get out here . . . He said that you [the bank] would get paid.
Transcript of Sentence, Jan. 13, 1984, at 6. Three was also testimony that an unsigned formal agreement had been made under which Guevremont had stated to pay back the money. Additionally, ...