US v. Charles Bentil

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:02-cr-00499-JCC-1. Copies to all parties and the district court. [1000018465]. [16-4330]

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 1 of 9

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4330

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES BENTIL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:02-cr-00499-JCC-1)

Submitted:

December 12, 2016

Decided:

February 7, 2017

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Angela
Fiorentino-Rios, Special Assistant United States Attorney,
Christopher
Catizone,
Assistant
United
States
Attorney,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 2 of 9

PER CURIAM:
Charles Bentil appeals from the 10-month sentence imposed
by

the

district

court

at

a

resentencing

revocation of his supervised release.

hearing

after

the

At Bentil’s revocation

hearing, the district court twice orally pronounced a sentence
of 10 days’ imprisonment, which was to run consecutive to any
state court sentence received by Bentil for the criminal conduct
underlying

his

entered

written

a

revocation.

The

judgment

district

reflecting

the

court

subsequently

10-day

sentence.

Fourteen days later, the district court sua sponte convened a
resentencing hearing and informed the parties that it had made a
mistake and had intended to impose a sentence of 10 months’
imprisonment, not 10 days.

The district court stated that this

error was obvious from the record of the revocation hearing and
that

the

imposition

of

a

10-day

sentence

would

be

plainly

unreasonable and constitute reversible error.

Finding the error

to

court

be

clear

from

the

record,

the

district

resentenced

Bentil to 10 months’ imprisonment under Fed. R. Crim. P. 35(a).
Bentil noted a timely appeal, challenging the district court’s
authority to resentence him.

For the reasons stated below, we

vacate the amended judgment order and remand with instructions
that the district court reinstate the 10-day sentence imposed at
Bentil’s revocation hearing.

2

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 3 of 9

A district court “may not modify a term of imprisonment
once it has been imposed unless the Bureau of Prisons moves for
a

reduction,

Guidelines

the

range,

Sentencing
or

Commission

another

permits the court to do so.”

statute

amends
or

the

Rule

applicable

35

expressly

United States v. Goodwyn, 596 F.3d

233, 235 (4th Cir. 2010) (internal quotation marks omitted).
Under Fed. R. Crim. P. 35(a), a district court “may correct a
sentence that resulted from arithmetical, technical, or other
clear error” within 14 days of sentencing.

“[T]he scope of

clear error correctable under Rule 35(a) is extremely narrow,”
which comports with Congress’ intent “to promote openness and
finality in sentencing.”
404-05

(4th

Cir.

United States v. Fields, 552 F.3d 401,

2009)

(internal

quotation

marks

omitted).

“Although courts take different approaches to Rule 35(a), all
essentially agree that clear error under the Rule requires some
reversible

error

at

the

initial

(internal quotation marks omitted).

sentencing.”

Id.

at

404

In other words, Rule 35(a)

“extend[s] only to those cases in which an obvious error or
mistake

has

occurred

in

the

sentence,

that

is,

errors

which

would almost certainly result in a remand of the case to the
trial court.”

United States v. Fraley, 988 F.2d 4, 7 (4th Cir.

1993) (quoting Fed. R. Crim. P. 35 advisory committee’s note to
1991

amendment).

We

review

de

3

novo

the

district

court’s

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 4 of 9

exercise of jurisdiction under Rule 35(a).

See United States v.

Poole, 531 F.3d 263, 270 (4th Cir. 2008).
On appeal, Bentil argues that the district court did not
have jurisdiction under Rule 35(a) to alter the 10-day sentence
initially imposed because the record does not evince that the
court committed “clear error” when imposing sentence at Bentil’s
revocation hearing.
this

court

would

In response, the Government argues that

have

remanded

for

resentencing

because

the

10-day sentence is procedurally unreasonable, and therefore, the
district court properly corrected the “clear error” under Rule
35(a). 1

We agree with Bentil.

In order for the district court to exercise jurisdiction
under Rule 35(a), it must have been “almost certain” that the
10-day sentence would have been reversed on appeal.
988

F.2d

at

discretion

7.

when

However,
imposing

“[a]
a

district

sentence

court

upon

See Fraley,
has

broad

revocation

of

supervised release,” United States v. Webb, 738 F.3d 638, 640
(4th Cir. 2013), and thus, in examining a revocation sentence,
this

court

“takes

a

more

deferential

appellate

posture

concerning issues of fact and the exercise of discretion than

1

The Government also argues that the district court’s error
was
arithmetical
or
technical.
We
find
this
argument
unpersuasive. Moreover, the district court solely relied on the
“clear error” language of Rule 35(a) to resentence Bentil.

4

Appeal: 16-4330

Doc: 28

reasonableness

Filed: 02/07/2017

review

for

Pg: 5 of 9

guidelines

sentences,”

United

States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks omitted).
if

it

is

within

unreasonable.”
omitted).

the

“We will affirm a revocation sentence

statutory

maximum

and

is

not

plainly

Webb, 738 F.3d at 640 (internal quotation marks

In conducting reasonableness review in the supervised

release revocation context, we “follow generally the procedural
and

substantive

considerations”

post-conviction sentences.

used

in

reviewing

United States v. Crudup, 461 F.3d

433, 438 (4th Cir. 2006).
A

revocation

district

court

considering

the

sentence

is

adequately
policy

procedurally
explains

statements

in

reasonable

the

if

sentence

Chapter

Seven

the

after
of

the

Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a)
(2012)

factors.

See

18

U.S.C.

§

3583(e)

(2012);

United

States v. Thompson, 595 F.3d 544, 546-47 (4th Cir. 2010).
court

need

revocation

not

be

sentence

as

detailed
as

it

or
must

specific
be

when

when

imposing
imposing

“A
a
a

post-conviction sentence, but it still must provide a statement
of reasons for the sentence imposed.”

Thompson, 595 F.3d at 547

(internal quotation marks omitted).
We first conclude that the intent of the district court to
impose a 10-month consecutive sentence is not sufficiently clear
from the record of the revocation hearing, and as such, the
5

Appeal: 16-4330

Doc: 28

district

Filed: 02/07/2017

court’s

imposition

Pg: 6 of 9

of

a

10-day

sentence

at

the

revocation hearing was not the type of obvious error that we
have suggested is correctable under Rule 35(a).

See Fields, 552

F.3d at 405 (suggesting district court could correct obvious
mistake where intent is clear from the record).

Although the

district court noted at the revocation hearing that Bentil had
repeatedly violated the conditions of his supervised release,
the

district

court’s

summary

of

those

violations

and

the

punishments imposed indicate that the violations did not involve
shockingly abhorrent behavior.

Furthermore, while the district

court did find that Bentil’s original offense was “very serious”
and that he had a significant criminal history, the court also
seemingly

took

into

consideration

several

mitigating

factors,

including Bentil’s steady employment, his clean drug screens,
his

completion

of

a

substance

abuse

program,

his

payment

of

child support for his daughter, and his substance abuse problem,
which began at an early age.

The court also acknowledged that

Bentil would likely face a sentence of imprisonment in state
court.

Consequently,

the

district

court’s

intent

at

the

revocation hearing to sentence Bentil to 10 months rather 10
days is ambiguous at best, and thus, any disconnect between the
10-day sentence and the court’s intent at the revocation hearing
cannot support resentencing under Rule 35(a).

6

See Fields, 552

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 7 of 9

F.3d at 405 (refusing “to search for an intent that was not
obvious to anyone” at initial sentencing hearing).
In addition, we find that the initial sentence of 10 days
imposed by the district court was not “clear error” within the
meaning of Rule 35(a) because we are not convinced that the
sentence

would

have

“almost

certain[ly]”

procedural unreasonableness on appeal.
7.

been

reversed

for

See Fraley, 988 F.2d at

At the revocation hearing, the district court took into

account

the

Guidelines

§ 3553(a) factors.

range

and

discussed

several

of

the

As discussed above, the district court also

considered the aggravating and mitigating factors in this case.
The district court’s discussion of these factors could support a
10-day

sentence

given

the

sentences by this court.

deference

afforded

to

revocation

Accordingly, we are not convinced that

we would find the 10-day sentence to be plainly procedurally
unreasonable on appeal.
Even

if

we

might

find

the

10-day

sentence

to

be

procedurally unreasonable, because the Government did not offer
any argument for a within-policy-statement range sentence at the
revocation hearing and did not object to the court’s explanation
of the 10-day sentence, plain error review would apply to any
appeal of the sentence for procedural unreasonableness.

See

Webb, 738 F.3d at 640; United States v. Houston, 529 F.3d 743,
749-50 (6th Cir. 2008) (taking into account that plain error
7

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 8 of 9

review would have applied to appeal of sentence in clear error
analysis

under

Rule

35(a)).

To

establish

plain

error,

the

Government would have to demonstrate that (1) the district court
committed

an

error;

(2)

the

error

was

plain;

(3)

the

error

affected the Government’s substantial rights; and (4) the error
“seriously

affect[s]

the

fairness,

reputation of judicial proceedings.”

integrity

or

public

Puckett v. United States,

556 U.S. 129, 135 (2009) (internal quotation marks omitted); see
United States v. Blatstein, 482 F.3d 725, 730, 733 (4th Cir.
2007) (“[W]e have recognized that the substantial rights of the
Government are . . . entitled to protection from plain error.”).
Under

plain

error

review,

certain to prevail on appeal.

the

Government

would

not

be

For the reasons explained above,

the Government cannot point to any error that is plain from the
record

of

the

revocation

hearing.

Moreover,

the

Government

would be hard-pressed to argue that its substantial rights were
affected because the total state and federal sentence ultimately
imposed was greater than the sentence proposed by the Government
at

Bentil’s

revocation

hearing. 2

2

Finally,

any

error

by

the

Although the hearings before the district court occurred
prior to the imposition of Bentil’s state sentence, we note that
Bentil was ultimately sentenced to a term of imprisonment
exceeding one year, and therefore, the 10-day consecutive
sentence is longer than the 12-month concurrent sentence
recommended by the Government at the revocation hearing.
See
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.
(Continued)
8

Appeal: 16-4330

Doc: 28

Filed: 02/07/2017

Pg: 9 of 9

district court in imposing a 10-day sentence does not “seriously
affect the fairness, integrity or public reputation of judicial
proceedings.”
quotation

Puckett, 556 U.S. at 135 (alteration and internal

marks

omitted).

To

the

contrary,

we

believe

that

permitting the district court to resentence Bentil after clearly
announcing the 10-day sentence and entering the written judgment
would be more detrimental to the fairness and integrity of the
proceedings than allowing the 10-day sentence to stand.
Accordingly,

we

vacate

the

amended

judgment

order

and

remand with instructions that the district court reinstate the
10-day

sentence

dispense

with

contentions

are

imposed
oral

at

Bentil’s

argument

adequately

revocation

because

presented

in

the
the

hearing.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

VACATED AND REMANDED

1989) (recognizing that we may take judicial notice of facts
outside of record on appeal in interest of justice).

9