decided: March 27, 1981.
UNITED STATES OF AMERICA
DELEO, JOSEPH JOSEPH DE LEO, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 80-00069)
Before Aldisert and Higginbotham, Circuit Judges, and Stern, District Judge.*fn*
Author: Per Curiam
Opinion OF THE COURT
The question for decision is whether the district court erred when it "corrected" appellant's sentence, substituting a fine of $5,000 for payment of restitution in the same amount. We conclude that the amendment was unauthorized, and therefore we will vacate the judgment and remand for further proceedings.
Appellant Joseph DeLeo pleaded guilty to five counts of a thirty-five count indictment, pursuant to a plea agreement presented to the district court under Fed.R.Crim.P. 11(e). Appellant pleaded guilty to counts charging unauthorized possession of food stamps (7 U.S.C. § 2024(b)) and forgery (18 U.S.C. § 495). On May 29, 1980, the court sentenced DeLeo to six months imprisonment and to probation for four and one-half years, on condition that he pay restitution in the amount of $5,000.
On August 25, 1980, DeLeo moved the district court pursuant to Fed.R.Crim.P. 35 to correct, reduce, or vacate his sentence. He did not contest the imprisonment or probation, nor did he challenge the court's authority to require payment of restitution. He contended only that the restitutionary order was unauthorized because $5,000 exceeded the "actual damages or loss caused by the offense for which conviction was had." 18 U.S.C. § 3651. The United States answered DeLeo's motion by admitting every allegation and averring that the actual loss caused by the crimes for which DeLeo was convicted totalled $3,081.*fn1 It acknowledged that the sentence should be amended to order restitution in that amount. See United States v. Buechler, 557 F.2d 1002, 1007-08 (3d Cir. 1977). DeLeo thereafter filed a Supplemental Memorandum of Law challenging the government's computations and suggesting that the United States "be required to prepare an accurate accounting of the actual amount lost in this case and by whom."
By an order dated September 23, 1980, which purported to correct the judgment pursuant to Fed.R.Crim.P. 36, the district court amended DeLeo's sentence by deleting the paragraph that ordered payment of $5,000 restitution and substituting a new paragraph imposing a fine in the same amount. This appeal followed.
The principle of finality underlies the rule that a court may not substantively alter a judgment without specific authorization. See, e. g., United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980); United States v. Scott, 437 U.S. 82, 84-85, 98 S. Ct. 2187, 2190, 57 L. Ed. 2d 65 (1978). Neither Rule 36 nor Rule 35 of the Federal Rules of Criminal Procedure authorizes the court's order, and we are unable to discover any other source of the necessary authority. Rule 36, on which the lower court relied, provides: "Clerical mistakes in judgments, orders or other parts of the record and errors in the record 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 court did not correct a clerical mistake or an error in the record. The record demonstrates that the judgment of sentence signed by the trial judge accurately reflects the judgment he pronounced in open court. Compare United States v. Marquez, 506 F.2d 620 (2d Cir. 1974); Kennedy v. Reid, 101 U.S. App. D.C. 400, 249 F.2d 492 (1957). Rule 36 applies only to clerical mistakes and errors in the record; it does not authorize substantive alteration of a final judgment. See United States v. Marchese, 341 F.2d 782, 788 (9th Cir.), cert. denied, 382 U.S. 817, 86 S. Ct. 41, 15 L. Ed. 2d 64 (1965); 2 C. Wright, Federal Practice and Procedure § 611 (1969).
Rule 35, cited in DeLeo's motion for correction of sentence, provides that "(t)he court may correct an illegal sentence at any time" and may reduce a sentence or "correct a sentence imposed in an illegal manner" within 120 days after it is imposed. Neither party suggests that the original sentence was illegal, but both agree that it was imposed in an illegal manner because it required payment of restitution in an amount greater than the actual loss. See Notes of the Advisory Committee on Rules, 18 U.S.C.A. following Fed.R.Crim.P. 35, page 344. When a defendant moves for correction of sentence under Rule 35, fairness demands that the district court's authority to "correct" be limited to correction of the illegality. Otherwise, a defendant may be deterred from calling the court's attention to an error for fear of subjecting himself to greater punishment.*fn2 We hold, therefore, that the district court abused its discretion by imposing a fine on the defendant when the only issue before it was the proper amount of restitution.*fn3
The judgment will be vacated and the case remanded for determination of the actual damages or loss caused by the offenses for which DeLeo was convicted, 18 U.S.C. § 3651, and entry of an appropriate order under Rule 35.