                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 14-10124
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                       1:08-cr-00067-LJO-2

 RAMON OCHOA,
         Defendant-Appellant.                     OPINION


        Appeal from the United States District Court
            for the Eastern District of California
        Lawrence J. O’Neill, District Judge, Presiding

                 Argued and Submitted
       December 8, 2014—San Francisco, California

                     Filed October 22, 2015

   Before: Johnnie B. Rawlinson and Mary H. Murguia,
   Circuit Judges, and Gloria M. Navarro, Chief District
                          Judge.*

                Opinion by Judge Rawlinson;
           Dissent by Chief District Judge Navarro




 *
   The Honorable Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
2                   UNITED STATES V. OCHOA

                           SUMMARY**


                           Criminal Law

    Affirming a two-year sentence imposed following
violations of supervised release, the panel held that Fed. R.
Crim. P. 35 was not intended to deprive the district court of
jurisdiction to alter a sentence during the course of the same
hearing.

    The panel held that a sentence is not final—and Rule
35(a) does not apply—when there is no formal break in the
proceedings from which to logically and reasonably conclude
that sentencing had finished; that the district court’s initial
twelve-month-and-a-day sentence was not a binding sentence
within the meaning of Rule 35; and that neither 18 U.S.C.
§ 3582(c) nor Rule 35 deprived the district court of
jurisdiction to alter the defendant’s sentence due to the
defendant’s apparently disrespectful conduct during the
ongoing sentencing hearing.

    Dissenting, Chief District Judge Navarro wrote that the
majority’s ruling, defying the unambiguous language of Rule
35 and the express limitation of § 3582(c), upholds the
draconian decision of the sentencing court to suddenly
double the term of incarceration initially pronounced based
solely on a perception that the defendant was laughing at the
court.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. OCHOA                          3

                           COUNSEL

Carlton F. Gunn, Pasadena, California, for Defendant-
Appellant.

Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, and Karen A. Escobar (argued),
Assistant United States Attorney, Fresno, California, for
Plaintiff-Appellee.


                           OPINION

RAWLINSON, Circuit Judge:

    Appellant Ramon Ochoa (Ochoa) challenges the two-year
sentence imposed following violations of his supervised
release conditions. Ochoa specifically contends that the
district court erred in increasing his sentence to the two-year
statutory maximum based on Ochoa’s apparently
disrespectful conduct after the district court imposed a
sentence of twelve months and a day. Ochoa maintains that
the district court lacked jurisdiction to increase an already
imposed sentence.1 We do not agree.

I. BACKGROUND

    Ochoa was originally indicted for being a felon in
possession of firearms and ammunition and for conspiracy to
distribute marijuana. Ochoa pled guilty to the felon in
possession of firearms and ammunition charge and was

  1
    Ochoa has since withdrawn the other issues raised in his Opening
Brief. See Notice of Withdrawal of Arguments dated May 15, 2015.
4                 UNITED STATES V. OCHOA

sentenced to seventy months’ imprisonment and a thirty-six
month period of supervised release.

    While Ochoa was still subject to supervised release, the
probation office pursued revocation based on Ochoa’s failure
to participate in a residential reentry center program as
directed. The probation officer had modified Ochoa’s
conditions of supervision to include a 180-day stay at the
reentry center “due to what [Ochoa] described as an unstable
living situation at his parent’s home . . .” However, Ochoa
“demonstrated argumentative and disrespectful behavior
towards the [reentry center] staff [,] . . . failed to follow staff
directives, and while [the probation] officer attempted to
speak to [Ochoa] regarding his behavior and placement,
[Ochoa] was argumentative and disrespectful and stated he
was going to ‘walk away’ from the program, without
permission.” In further support of revocation, the probation
officer delineated that Ochoa had a prior history of violating
reentry center policies, including testing positive for synthetic
cannabis use, possession of a small knife, and abusive
behavior towards the reentry center staff.

     Because Ochoa’s supervised release violation was a
Grade C violation, the corresponding guidelines sentencing
range was seven to thirteen months’ imprisonment. The
probation office recommended that the district court impose
a sentence of twelve months and a day imprisonment. The
government agreed with the recommended sentence.

    During the revocation proceeding, the district court
determined that the applicable statutory maximum was two
years’ imprisonment and that the sentencing guidelines range
was seven to thirteen months’ imprisonment. The district
court initially observed that the recommended sentence of
                 UNITED STATES V. OCHOA                     5

twelve months and a day was “way too low” considering
Ochoa’s blatant disrespect for staff at the reentry center and
for his probation officer. Ochoa responded that he did not
intend to be disrespectful and apologized for his behavior.
The district court then stated to Ochoa:

          You are disrespectful. You think you can
       do and say anything you want to say just
       simply because you disagree.

           That’s not acceptable. You think that you
       are on the same level and the same par with
       people who are responsible to get you on the
       right track, and you are wrong there too.

           You think that the fact that committing a
       crime and then having rules to follow as a
       result of it shouldn’t be that important to you,
       and you are wrong there too.

           You just have this idea that you can do
       whatever you want and you are just dead
       wrong. And I can tell you that no matter what
       I do here, you are going to be back in the
       system because you have an attitude that
       absolutely tells everybody on the face of the
       planet that you know more than they do, you
       are smarter than they do [sic], and the law is
       not for you.

           That’s too bad. You know, you talk about
       wanting to see your children. This is a way
       not to see your children.
6                UNITED STATES V. OCHOA

          I can’t understand for the life of me, how
       you can’t see that, but for whatever reason,
       you can’t see it. And I don’t get it, I don’t
       understand it, but that’s up to you. You make
       your choices and we respond to them.

    Following these comments, the district court judge
imposed a sentence of twelve months and a day. After the
judge informed Ochoa of his right to appeal, he inquired if
there was “[a]nything else?” While Ochoa’s counsel
attempted to clarify if Ochoa’s supervision was terminated,
the judge observed that Ochoa was laughing. Ochoa stated
that he was laughing because he was “just surprised.” The
judge responded that Ochoa “just talked [himself] into more
time” and explained to Ochoa that the court had “just lectured
[him] about respect for the system and now you laugh at the
court.” Although Ochoa stated that he was not laughing at
the court, the judge expressed the view that Ochoa “won’t
learn without giving the maximum,” and imposed the
statutory maximum sentence of two years’ imprisonment.
Ochoa’s counsel did not object to the district court’s
imposition of the higher sentence.

    Ochoa filed a timely notice of appeal of the sentence.

II. STANDARD OF REVIEW

   We review de novo the district court’s jurisdiction to
impose sentence. See United States v. Penna, 319 F.3d 509,
511 (9th Cir. 2003).
                    UNITED STATES V. OCHOA                    7

III.      DISCUSSION

    Relying on 18 U.S.C. § 3582(c), Ochoa contends that the
district court lacked jurisdiction to increase his sentence once
the district court pronounced a lower sentence.

       18 U.S.C. § 3582(c) provides in relevant part:

          The court may not modify a term of
          imprisonment once it has been imposed
          except that–(1) in any case . . . (B) the court
          may modify an imposed term of
          imprisonment to the extent otherwise
          expressly permitted by statute or by Rule 35
          of the Federal Rules of Criminal Procedure
          ...

    In turn, Federal Rule of Criminal Procedure 35 states that
“[w]ithin 14 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other
clear error” and defines “sentencing” as “the oral
announcement of sentence.” Fed. R. Crim. P. 35(a) & (c).

    Although we have not addressed the specific issue raised
in this case, other circuits have. In United States v. Meza,
620 F.3d 505 (5th Cir. 2010), the Fifth Circuit considered
whether the district court lacked jurisdiction under 18 U.S.C.
§ 3582(c) to correct a sentence after pronouncement of
sentence and advisement that the defendant had a right to
appeal. See id. at 506–07. After the district court had
pronounced a sentence of thirty-three months’ imprisonment
on the underlying charge and ten months’ imprisonment on
revocation of supervised release, defendant’s attorney advised
the district court that the sentencing range had been
8                   UNITED STATES V. OCHOA

miscalculated. See id. at 507. The court acknowledged and
corrected the miscalculation, but reformulated the sentence to
reach the same total months of imprisonment. Rather than
thirty-three and ten months respectively, the court
reformulated the sentence to correspond to the correct
guideline range of thirty months for the underlying charge
and thirteen months on revocation of supervised release. See
id.

    On appeal, the defendant challenged the district court’s
authority to reformulate the sentence after the sentence had
been orally pronounced. See id. The defendant argued that
the second statement by the sentencing judge correcting the
miscalculation and reformulating the sentence constituted an
impermissible modification of her sentence. See id. at 508.
However, the Fifth Circuit reasoned that the defendant’s
argument would be viable only if “the initial utterance by the
sentencing judge was in fact a binding sentence. . . .” Id. at
508.

    The Fifth Circuit observed that it had never applied “a
draconian rule” that would preclude the modification of a
sentence “made within the same hearing, on the same day,
within moments of the original pronouncement.” Id. The
Fifth Circuit explained that “[t]he unbroken sequence of
actions in this case is a compelling factor in our consideration
of Federal Rule of Criminal Procedure 35. This counsels in
favor of . . . construing the totality of the events as one
sentence.” Id.2


    2
   Our dissenting colleague asserts that the rule we announce today is the
“draconian” one, because it recognizes the district court’s power to double
Ochoa’s sentence in response to Ochoa’s laughter at the sentencing
hearing. Dissenting Opinion, pp. 17–18. This argument confuses the
                     UNITED STATES V. OCHOA                                 9

    The Fifth Circuit distinguished an unpublished disposition
holding that the district court erred under Rule 35 by
convening a separate hearing and modifying the defendant’s
sentence because the defendant “lodged a profanity-laden
diatribe aimed at the sentencing judge” after sentence was
imposed. Id. The Fifth Circuit faulted the district court in
that case because “the modification . . . happened after that
sentencing judge gaveled the hearing adjourned” and
therefore “required the sentencing judge to perform the
affirmative act of reconvening the hearing and entering onto
the record a sentence different than the one previously
entered. . . .” Id. at 508–09 (citation omitted). Unlike in the
unpublished case, the Fifth Circuit reasoned in Meza that
there was no “formal break in the proceedings,” id. at 509,
between the district court’s announcement of the sentence and
defense counsel’s pointing out the district court’s error. See
id. at 506–07.

    In a more recent case, United States v. Gerezano-Rosales,
692 F.3d 393 (5th Cir. 2012), the Fifth Circuit reiterated its
reasoning. In Gerezano-Rosales, after the district court had
orally pronounced sentence, it discovered that Gerezano


district court’s jurisdiction to announce sentence with the reasonableness
of the sentence it announces. The district court is required to formulate a
sentence for a supervised release violation according to the factors referred
to in 18 U.S.C. § 3583(c). Whether the district court unreasonably
doubled Ochoa’s sentence in response to Ochoa’s behavior in light of
those factors is not before us—Ochoa expressly withdrew all such
contentions after oral argument. We therefore express no opinion on the
matter. We note only that the reasonableness of the district court’s
increased sentence is a separate question from whether the district court
had jurisdiction to increase the sentence in the first place. We hold that
the district court retained jurisdiction to alter the sentence until a “formal
break in the proceedings” occurred, i.e., until the sentencing hearing
concluded. Gerezano-Rosales, 692 F.3d at 397.
10               UNITED STATES V. OCHOA

spoke English, which called into question some of the
representations made by Gerezano during the sentencing
hearing. See id. at 396.

    After a mildly heated exchange with the defendant
regarding Gerezano’s negative attitude, the court made the
following statement:

       I find that you are disrespecting me. I stand
       for the law of the United States and your
       demeanor is disrespectful. Your words are
       disrespectful. Everything about you so far has
       been disrespectful since I just sentenced you.
       That is changed circumstances. Because of
       that I find that the guidelines are no longer
       adequate. So your sentence instead of 71
       months will now be 108 months. . . .

Id.

    On appeal, Gerezano challenged the authority of the
district court to “re-sentence” him after the initial sentence
was pronounced. The Fifth Circuit concluded that the district
court’s initial, 71-month sentence was not a final sentence
modifiable only according to § 3582(c) and Rule 35. The
Fifth Circuit stated:

       As in Meza, we conclude that the district
       court’s initial oral pronouncement of
       Gerezano’s sentence did not constitute a
       binding sentence and therefore did not strip
       the court of jurisdiction to change its initial
       formulation. . . . Thus, there was no formal
       break in the proceedings from which to
                 UNITED STATES V. OCHOA                       11

       logically and reasonably conclude that
       sentencing had finished. Accordingly, the
       district court did not lack jurisdiction to
       impose the 108-month sentence.

Id. at 397 (citation and internal quotation marks omitted).

     Other courts are in accord with the Fifth Circuit’s
interpretation of 18 U.S.C. § 3582(c) and Rule 35. In United
States v. Luna-Acosta, 715 F.3d 860, 865 (10th Cir. 2013),
the Tenth Circuit observed that although “Rule 35(c) defines
sentencing as the oral announcement of the sentence, nothing
in the rule requires or suggests that whatever term or terms of
imprisonment the district court first utters during a hearing is
to be treated as the sentence . . .” (internal quotation marks
omitted). The Tenth Circuit adopted the Fifth Circuit’s
holding in Meza that “a sentence is not final—and Rule 35(a)
does not apply—when there is no formal break in the
proceedings from which to logically and reasonably conclude
that sentencing had finished. . . .” Id. (citation and internal
quotation marks omitted); see also United States v. Burgos-
Andujar, 275 F.3d 23, 32 (1st Cir. 2001) (concluding that the
district court’s alteration of a sentence during the same
hearing did not violate Rule 35).

    We are persuaded by the reasoning of our sister circuits,
and conclude that Rule 35 was not intended to deprive the
district court of jurisdiction to alter a sentence during the
course of the same hearing. The rule Ochoa advocates would
strip district courts of flexibility to respond to evolving
circumstances during sentencing hearings.           Here, for
example, Ochoa’s laughter signaled to the district court that
Ochoa’s lack of interest in cooperating with those tasked with
his rehabilitation was as severe as the court originally
12                  UNITED STATES V. OCHOA

contemplated when remarking that the recommended
sentence of twelve months and a day “seem[ed] . . . way too
low.” If the district court’s initial twelve-month-and-a-day
sentence were final under Rule 35, the district court would
have been unable to adjust the sentence to account for this
unexpected development. Unanticipated events may also
work in the defendant’s favor–a character witness might
arrive at the hearing late, or a new piece of mitigating
evidence might be discovered. Ochoa’s proposed rule would
preclude a district court from adjusting the sentence
downward in light of new information favorable to the
defendant.

    When the Fifth Circuit called the rule that Ochoa
proposes “draconian,” this is what it meant–the rule would
carve the district court’s initial pronouncement of sentence in
stone, preventing the court from revising the sentence in light
of new developments during the hearing. Meza, 620 F.3d at
508. Consistent with the rule adopted by other circuits, we
hold that “a sentence is not final—and Rule 35(a) does not
apply—when there is no formal break in the proceedings
from which to logically and reasonably conclude that
sentencing had finished. . . .” Luna-Acosta, 715 F.3d at 865
(citation and internal quotation marks omitted).3


   3
     According to our dissenting colleague, the plain text of Rule 35
provides that the district court’s initial pronouncement of sentence is the
final sentence, regardless of what might happen later during the hearing.
See Dissenting Opinion, pp. 15–19. The dissent bases this conclusion on
the definition in Rule 35 of “sentencing” as “the oral announcement of the
sentence.” Fed. R. Crim. P. 35(c). However, the dissent does not explain
why “the oral announcement of the sentence” must mean only the initial
pronouncement of the sentence; the phrase may just as well refer to the
sentencing hearing as a whole. We think that the latter meaning better
provides for “the just determination of every criminal proceeding” and
                    UNITED STATES V. OCHOA                            13

IV.      CONCLUSION

    We hold that the district court’s initial, twelve-month-
and-a-day sentence was not a binding sentence within the
meaning of Federal Rule of Criminal Procedure 35.
Accordingly, neither 18 U.S.C. § 3582(c) nor Rule 35
deprived the district court of jurisdiction to alter Ochoa’s
sentence due to Ochoa’s apparently disrespectful conduct
during the ongoing sentencing hearing.

      AFFIRMED.



NAVARRO, Chief District Judge, dissenting:

    I respectfully dissent. The majority’s ruling upholds the
draconian decision of the sentencing court to suddenly double
the term of incarceration initially pronounced and impose the
statutory maximum sentence based solely on a perception that
the defendant was laughing at the court. Affirming this
injudicious decree of the sentencing court defies the
unambiguous language of Rule 35 of the Federal Criminal
Rules of Procedure and the express limitation of 18 U.S.C.
§ 3582(c).

                                    I.

   The jurisdiction of district courts to reconsider terms of
imprisonment after they are imposed is expressly limited by
18 U.S.C. § 3582(c). This section provides that a district


“fairness in administration,” as it permits district courts flexibility in
dealing with unexpected events at the hearing. Fed. R. Crim. P. 2.
14                   UNITED STATES V. OCHOA

court may not “modify a term of imprisonment once it has
been imposed except . . . to the extent otherwise expressly
permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure.” 18 U.S.C. § 3582(c).1 The scope of
§ 3582(c) is further clarified by Rule 35(c), which states: “As
used in this rule, ‘sentencing’ means the oral announcement
of the sentence.” Concordantly, subsection (a) of that rule
limits a district court to modify an imposed sentence only
upon a finding that the sentence was based on “arithmetical,
technical, or other clear error.”

     Together, these provisions prohibit a district court from
modifying a term of imprisonment after a sentence has been
orally announced except for the reasons specifically set forth
in Rule 35(a) or by statute. Therefore, the question of
whether the district court possessed jurisdiction to modify
Ochoa’s sentence after declaring “twelve months and a day”
as his term of incarceration turns only upon whether that
initial statement constituted an “oral announcement.” As
used in Rule 35, “sentencing” occurs when a district court
orally gives notice, in open court, of the terms of a
defendant’s sentence.2 After oral notice is given, § 3582

  1
   Additionally, § 3582(c) provides that a district court may “reduce” a
previously imposed sentence upon specific conditions, however, these
provisions are not relevant to the instant case.
    2
      It is fundamental that statutory construction must begin “with the
language of the statute itself.” United States v. Ron Pair Enters., Inc.,
489 U.S. 235, 241 (1989); see also, e.g., Ingalls Shipbuilding, Inc. v. Dir.,
Office of Workers’ Comp. Programs, 519 U.S. 248, 255 (1997). Where
a “statute’s language is plain, the sole function of the courts is to enforce
it according to its terms.” Ron Pair Enters., 489 U.S. at 241. This same
principle applies equally to cases requiring the interpretation of Federal
Rules of Criminal Procedure. See United States v. John Doe, Inc. I,
481 U.S. 102, 109 (1987); Bowman Dairy Co. v. United States, 341 U.S.
                   UNITED STATES V. OCHOA                           15

substantially restricts a district court’s ability to modify the
stated term of incarceration except for the reasons specifically
identified in Rule 35(a).

    As applied in this case, the district court orally gave
public notice of Ochoa’s sentence when it stated that Ochoa
would be “committed to the custody of the Bureau of Prisons
for the term . . . of twelve months and a day.” After that
moment, the district court lacked jurisdiction to increase
Ochoa’s term of incarceration without specifically finding
that the sentence imposed had resulted from “arithmetical,
technical, or other clear error,” as stated in Rule 35(a). The
fact that the district court began to inform Ochoa of his right
to appeal is further evidence that the pronouncement of
sentence was complete, as that advice is to be given only
“[a]fter sentencing.” Fed. R. Crim. P. 32(j)(1)(B).

    However, without regard for the procedure required by
Rule 32 or the restrictions of § 3582 or Rule 35, the district
court abruptly doubled Ochoa’s term of incarceration to the
statutory maximum without specifying a reason for the
modification other than its belief that Ochoa had begun
laughing at the court and “would not learn” respect unless he
was given the statutory maximum.

        THE COURT: You think this is funny?

        THE DEFENDANT: No way.


214, 220 (1951). In common usage, to “announce” means “to give public
notice of.” Webster’s Third New International Dictionary 87 (1986); see
also 1 Oxford English Dictionary 485 (2d ed. 1989) (“to make known as
an official messenger”); Black’s Law Dictionary 104 (9th ed. 2009) (“to
make publicly known.”).
16              UNITED STATES V. OCHOA

       THE COURT: What is the laughter about?

       THE DEFENDANT: I’m just surprised.

       THE COURT: Well, you just talked yourself
       into more time.

       THE DEFENDANT: I’m surprised that –

       THE COURT: No, don’t do that. I have just
       lectured you about respect for the system –

       THE DEFENDANT: I heard that.

       THE COURT: – and now you laugh at the
       Court.

       THE DEFENDANT: Your Honor, I didn’t at
       all.

       THE COURT: Yes, you did. Therefore, the
       Court finds that you won’t learn without
       giving the maximum, and I’m giving the
       statutory maximum of two years, and it starts
       now. That’s it. You are done.

Because the district court did not articulate either a proper
Rule 35 or other valid statutory basis for varying from the
guideline range and modifying the twelve-month-and-one-
                   UNITED STATES V. OCHOA                           17

day term of incarceration,3 it lacked jurisdiction to increase
Ochoa’s sentence.

                                  II.

    Nevertheless, the majority sidesteps § 3582 and Rule 35
entirely, while conspicuously declining to explain how the
district court’s initial recitation of Ochoa’s sentence of twelve
months and a day could have been anything other than an
“oral announcement.” The majority simply dismisses Rule
35(c)’s clear limitation as “draconian,” and adopts an
alternative rule conjured up by the Fifth Circuit in United
States v. Meza, 620 F.3d 505 (5th Cir. 2010). In that case, the
Fifth Circuit held that, after a sentence is orally announced,
a district court maintains jurisdiction to re-impose a different
sentence for any reason it sees fit without limitation so long
as there has been no “formal break in the proceedings.”

    The fact that the majority dismisses the plain meaning of
§ 3582 and Rule 35 as “draconian” is particularly ironic in
light of the facts of this case. If the Court gave regard to
these provisions, Ochoa would serve only the original
sentence of one year and a day. However, by applying the
Fifth Circuit’s Meza rule, the majority upholds an additional
year of confinement that was imposed as a consequence for
Ochoa’s act of laughing at the district court. Considering the
severe outcome in this case, it is readily apparent that the
more “draconian” rule is the one that the majority has adopted
today, which allows a sentencing judge to double the



  3
   “[T]o promote respect for the law” is omitted from subsection (e) of
§ 3583 and not a factor to be considered during sentencing for a
supervised release violation.
18               UNITED STATES V. OCHOA

announced sentence and impose the statutory maximum
because he believed the defendant laughed at him.

    Moreover, the pragmatic concerns raised by the Fifth
Circuit in Meza to justify the creation of its “formal break”
rule were ill-founded because those concerns could and
should have more properly been resolved by simply applying
Rule 35(a). In Meza, the district court was made aware of a
miscalculation in the sentencing guideline range immediately
after it had announced the defendant’s sentence and read her
appellate rights. The district court then immediately issued
a different sentence using the correct guideline range. Given
these facts, the Fifth Circuit could have simply looked to Rule
35(a), and held that after the original sentence was
announced, the district court properly found that the sentence
resulted from an “arithmetical, technical, or other clear error”
and corrected it accordingly.

    Instead of recognizing that their concerns could be
addressed within the framework of § 3582 and Rule 35, the
Meza Court called these provisions “draconian,” ignored their
clear jurisdictional limitations upon the inherent common law
authority of the sentencing courts, and fabricated the “formal
break” rule herein adopted by the majority. In its attempt to
solve a problem that did not actually exist, the Meza Court
manufactured a rule that weakens the finality of the sentence
pronouncement and empowers parties to implore the court to
reconsider its pronouncement right up until the break. The
decision of the majority is not supported by the relevant
statutory text, and perversely permits district courts to
increase sentences at an arbitrary whim so long as the
modified sentence is imposed before the bang of a gavel. The
instant case demonstrates precisely how it is actually the
                 UNITED STATES V. OCHOA                    19

correct application of Rule 35(c) which prevents such
draconian outcomes.

     It is also important to remember that a more valid avenue
exists outside of § 3582 and Rule 35 by which a district court
may punish a defendant whose courtroom misbehavior
“obstruct[s] the administration of justice.” 18 U.S.C. § 401.
Indeed, this Court has previously held, “The inherent power
of the courts to punish contempt of their authority and to
coerce compliance with orders is not disputed.” United States
v. Powers, 629 F.2d 619, 624 (9th Cir. 1980). Therefore, if
the district court felt it necessary to punish Ochoa for his
purported disrespectful courtroom behavior, it should have
initiated contempt proceedings rather than rashly increase his
term of incarceration for the underlying offense.

                             III.

    Section 3582 and Rule 35 impose unambiguous
limitations upon the jurisdiction of district courts to change
their minds after imposing a sentence upon a defendant.
These provisions embody the notion that a judge’s decision
as to how long a defendant should be involuntarily
imprisoned must be careful, measured, and deliberate—not
subject to impulsive change or emotional whims. Casting
aside the clear limitations required by these provisions, the
majority upholds a sentence that was imposed out of haste
and imprudence, based on conduct that occurred within the
courtroom. It is hard to imagine a more draconian rule than
the one adopted by the majority today. Therefore, under a
plain reading of § 3582 and Rule 35, the improperly modified
20               UNITED STATES V. OCHOA

imposition of a two-year term of incarceration should be
vacated and the original sentence of twelve months and a day
should be reinstated.

     For the foregoing reasons, I respectfully DISSENT.
