                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            October 28, 2015

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                  No. 14-3239
                                                    (D.C. No. 6:03-CR-10148-MLB-1)
 v.                                                             (D. Kan.)

 MICHAEL HENDRIX,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, HOLMES and MATHESON, Circuit Judges.


       Two-and-a-half hours after sentencing Michael Hendrix for violating the terms of

his supervised release, the district court imposed an additional year of supervised release.

Mr. Hendrix appeals, arguing the district court lacked jurisdiction to do so. We agree.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reverse and

remand.




       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   I. BACKGROUND

       On September 27, 2004, Mr. Hendrix pled guilty to two counts of receiving child

pornography, in violation of 18 U.S.C. § 2252(a)(2). The district court sentenced him to

96 months in prison followed by a three-year term of supervised release, which began on

June 21, 2012. The Government subsequently petitioned to revoke Mr. Hendrix’s

supervised release based on allegations that he had (1) failed to comply with the policies

and procedures of his residential reentry center, (2) failed to participate in mental health

and/or sex offender treatment, and (3) possessed sexually explicit materials.

       At his October 6, 2014 revocation hearing (“first revocation hearing”), Mr.

Hendrix admitted to the violations. After describing Mr. Hendrix as a danger to the

community and recommending that he be “lock[ed] . . . up for the rest of [his] life,” the

district court sentenced Mr. Hendrix to two years in prison. ROA, Vol. 3 at 16-17. When

the court asked whether it had “covered everything,” defense counsel replied, “I believe

so, Your Honor.” ROA, Vol. 3 at 17. The court concluded the proceeding and went into

recess at 1:10 p.m.

       At 3:50 p.m., the district court reconvened the hearing (“second revocation

hearing”). The court advised the parties that in “imposing the two-year sentence today,

[it] neglected to cover the matter of supervision and clarify that there’s a one-year term of

supervision.” ROA, Vol. 3 at 17-18. Mr. Hendrix did not object, and the hearing

concluded at 3:51 p.m. Mr. Hendrix now appeals, arguing the district court lacked

jurisdiction to impose the one-year term of supervised release.
                                             -2-
                                     II. DISCUSSION

                                  A. Standard of Review

       Because Mr. Hendrix’s claim of error implicates subject matter jurisdiction, we

review the district court’s ruling de novo. United States v. Blackwell, 81 F.3d 945, 947

(10th Cir. 1996) (“We review de novo the district court’s legal determination that it

possessed jurisdiction to modify Defendant’s sentence.”). We do so even though Mr.

Hendrix failed to object in district court. See United States v. Washington, 653 F.3d

1251, 1257 (10th Cir. 2011) (“[D]efects in subject-matter jurisdiction require correction

regardless of whether the error was raised in district court.” (citation omitted)).

                               B. Jurisdiction and Rule 35

       Federal courts “lack jurisdiction to modify a term of imprisonment once it has

been imposed,” except where a modification is “statutorily authorized.” United States v.

Graham, 704 F.3d 1275, 1277 (10th Cir. 2013). A sentence becomes final when there is

a “formal break in the proceedings from which to logically and reasonably conclude that

sentencing had finished.” United States v. Luna-Acosta, 715 F.3d 860, 865 (10th Cir.

2013) (quotation omitted). Because the imposition of supervised release followed a

“formal break in the proceedings,” Mr. Hendrix contends the district court could impose

supervised release—thereby modifying his sentence—only if it derived its jurisdiction

from a statutory exception. We agree.

       The only potentially relevant exception is a court’s power to “modify an imposed

term of imprisonment to the extent . . . expressly permitted by . . . Rule 35 of the Federal
                                             -3-
Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). Under that rule, “[w]ithin 14

days after sentencing, the court may correct a sentence that resulted from arithmetical,

technical, or other clear error.” Fed. R. Crim. P. 35(a).

       The “scope of the district court’s authority under [Rule 35(a)] is not broad.”

United States v. Soto-Holguin, 163 F.3d 1217, 1221 (10th Cir. 1999), overruled on other

grounds, United States v. Meyers, 200 F.3d 715 (10th Cir. 2000). A “district court [may]

not use Rule 35 to re-open issues previously resolved at sentencing,” United States v.

Bedonie, 413 F.3d 1126, 1129 (10th Cir. 2005), or to “alter a sentence for substantive

reasons after it has been verbally imposed,” United States v. Mendoza, 543 F.3d 1186,

1196 (10th Cir. 2008). As this language suggests, the rule does not afford the court or the

parties a second bite at the sentencing apple:

       The Advisory Committee Notes to [Rule 35(a)] state that “[t]he authority to
       correct a sentence under this subdivision is intended to be very narrow ... [.]
       The subdivision is not intended to afford the court the opportunity to
       reconsider the application or interpretation of the sentencing guidelines or
       for the court simply to change its mind about the appropriateness of the
       sentence. Nor should it be used to reopen issues previously resolved at the
       sentencing hearing. . . . ”

Bedonie, 413 F.3d at 1129-30 (alterations in original) (quotation omitted).

       In a few cases, we have elaborated this principle by identifying changes that are

permissible under Rule 35(a). We have held, for instance, that “failure to include the

specific reasons for a variance in the written order of judgment and commitment

constitutes ‘clear error’ for purposes of Rule 35(a).” Mendoza, 543 F.3d at 1195. But

mostly we have defined Rule 35(a) “clear error” through exclusion. A district court may
                                             -4-
not invoke Rule 35 to revisit sentencing decisions that are “discretionary, not

mandatory,” such as ordering restitution to victims. Bedonie, 413 F.3d at 1130 (quotation

omitted). Nor may a court reduce a defendant’s term of imprisonment because it decides,

upon further consideration, that the Guidelines are too harsh. Soto-Holguin, 163 F.3d at

1221-22. And Rule 35(a) does not confer on district courts the power to modify a

previously entered forfeiture order. See United States v. Libretti, 38 F.3d 523, 527 n.4

(10th Cir. 1994).

       The omission of supervised release is not the kind of “arithmetical, technical, or

other clear error” Rule 35(a) contemplates. Adding supervised release reflected a

“substantive,” “discretionary” decision to impose a sentencing term the district court had

implicitly rejected by adjourning the first sentencing hearing after imposing two years’

imprisonment. Because that hearing formally concluded at 1:10 p.m., Rule 35 did not

empower the district court at 3:50 p.m. to “modify” Mr. Hendrix’s sentence by tacking on

an additional year of supervised release.

          C. Jurisdiction Under 18 U.S.C. § 3583(e)(2) and Harmless Error

       The Government argues that, notwithstanding the narrow scope of Rule 35, the

district court was authorized to impose an additional year of supervised release under 18

U.S.C. § 3583(e)(2). That statute permits a district court to “extend a term of supervised

release if less than the maximum authorized term was previously imposed . . . at any time

prior to the expiration or termination of the term of supervised release.” 18 U.S.C.

§ 3583(e)(2). Mr. Hendrix’s original three-year term of supervised release was less than
                                            -5-
the statutorily authorized maximum. See 18 U.S.C. § 3583(k) (permitting term up to life

for violations of 18 U.S.C. § 2252). That term had not expired as of his October 6, 2014

revocation hearing, and the district court did not terminate it on that date. On the

Government’s view, therefore, the court had authority to “extend” that three-year term at

the second revocation hearing.

       The Government’s argument is correct as far as it goes. “[A] ‘revoked’ term of

supervised release survives to be served in prison . . . [and] any balance not served in

prison may survive to be served out as supervised release.” Johnson v. United States, 529

U.S. 694, 707 (2000). As a result, Mr. Hendrix’s original, unexpired term of supervised

release could have been extended at the second revocation hearing despite being revoked

at the first. See United States v. Vargas, 564 F.3d 618, 622 (2d Cir. 2009) (noting that

revocation of defendant’s supervised release “did not necessarily eliminate the possibility

that [his] supervised release might be reinstated”) (citing Johnson, 529 U.S. at 705-06

(“[U]nlike a ‘terminated’ order of supervised release, one that is ‘revoked’ continues to

have some effect.”)).1


       1
          Mr. Hendrix argues this interpretation is precluded by 18 U.S.C. § 3583(h),
which provides that “[w]hen a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment, the court may include a requirement that the
defendant be placed on a term of supervised release after imprisonment.” We disagree.
Section 3583(e)(2) permits extension of a preexisting term of supervised release only if
“less than the maximum authorized term was previously imposed.” Section 3583(h)
clarifies that if a defendant has almost entirely served out his original, maximum term of
supervised release at the time he is revoked, the court may still impose, as part of the
revocation sentence, a term of supervised release greater than whatever balance remains
                                                                               Continued . . .
                                             -6-
       But the argument succeeds only if, at the second revocation hearing, the district

court was “extending” Mr. Hendrix’s original term of supervised release, rather than

“modifying” his two-and-a-half-hour-old sentence for violation of supervised release.

The record cannot bear this interpretation. The district court did not identify the source

of its authority to impose the additional year of supervised release. And its language at

the second revocation hearing—in particular, its statement that it wanted to “clarify” the

term of supervised release it had “neglected” to address previously—makes clear the

district court believed it was modifying the sentence Mr. Hendrix received for violating

his original term of supervised release. As explained above, the district court lacked

jurisdiction to do so.

       Although it does not use these words, the Government appears to argue that, even

if the district court exceeded its Rule 35(a) authority, doing so was harmless error. But

“such an argument ‘misunderstands the nature of a jurisdictional requirement: a litigant’s

failure to clear a jurisdictional hurdle can never be “harmless” or waived by a court.’” In

re Woosley, 855 F.2d 687, 688 (10th Cir. 1988) (quoting Torres v. Oakland Scavenger

Co., 487 U.S. 312, 317 n.3 (1988)); see also United States v. Larsen, 948 F.2d 1295,

1991 WL 240140, at *3 (10th Cir. Nov. 12, 1991) (unpublished), overruled on other

grounds, United States v. Flowers, 464 F.3d 1127, 1130 n.1 (10th Cir. 2006) (finding

harmless-error analysis inapplicable where Government failed to comply with

on the original term. Thus § 3583(h) does not, as Mr. Hendrix argues, render
§ 3583(e)(2) superfluous.

                                            -7-
jurisdictional requirement to “serve an information [on the defendant] stating which prior

drug-related conviction it intended to rely on in seeking an enhanced sentence as required

under [21 U.S.C.] § 851(a)(1)”).2 The district court lacked jurisdiction to impose a

supervised release term for the 2014 revocation violations. To add a supervised release

term to the one Mr. Hendrix was serving for his 2004 convictions, the court needed to

invoke § 3583(e)(2), which it did not do.

                          D. Affirm on an Alternative Ground

       We “can affirm a lower court’s ruling on any grounds adequately supported by the

record, even grounds not relied upon by the district court.” United States v. Mabry, 728

F.3d 1163, 1166 (10th Cir. 2013) (quotation omitted). The decision whether to do so is

committed to our “discretion.” United States v. Damato, 672 F.3d 832, 844 (10th Cir.

2012). “We have identified several guiding factors in determining whether to consider an

alternative theory: ‘[1] whether the ground was fully briefed and argued here and below;

[2] whether the parties have had a fair opportunity to develop the factual record; and [3]

whether, in light of factual findings to which we defer or uncontested facts, our decision

would involve only questions of law.’” Id. (citation omitted).

       Assuming without deciding we can affirm Mr. Hendrix’s term of supervised

release on the alternative jurisdictional ground provided by § 3583(e)(2), these factors


       2
         Although not precedential, we find the reasoning of this unpublished opinion
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

                                            -8-
counsel against doing so. Although the parties discuss this statute in their appeal briefs,

neither the district court nor the parties mentioned § 3583(e)(2) at either of the October 6,

2014 revocation hearings, nor was it briefed in district court. The issue therefore was not

“fully briefed and argued . . . below.” Perhaps more important in this case, the

application of § 3583(e)(2) does not “involve only questions of law.” Sentencing is a

discretionary endeavor; whether to impose supervised release is not a question

susceptible of resolution solely through legal analysis. Because the district court did not

address § 3583(e)(2) during sentencing, we hesitate to assume it would invoke its

authority to extend Mr. Hendrix’s original term of supervised release if presented with

the opportunity. The district court should decide in the first instance whether an

extension is appropriate. Accordingly, we decline to affirm on an alternative ground.

                                        E. Remand

       When a district court announces a second sentence that it lacked jurisdiction to

impose, we “strike down the later sentence and remand the case with instructions to

reinstate the defendant’s original sentence.” United States v. Green, 405 F.3d 1180, 1188

(10th Cir. 2005). On remand, the district court should reinstate the sentence it announced

at the first revocation hearing, which consisted of only two years’ imprisonment, with no

term of supervised release. Based on the foregoing analysis, the district court may

consider invoking its jurisdiction under 18 U.S.C. § 3583(e)(2).




                                             -9-
                                  III. CONCLUSION

      The district court lacked jurisdiction to impose additional supervised release under

Rule 35. Notwithstanding § 3583(e)(2), harmless error does not apply, and we decline to

affirm on an alternative ground. We therefore reverse and remand to the district court to

reinstate Mr. Hendrix’s original sentence and conduct any further proceedings consistent

with this order and judgment.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




                                           -10-
14-3239, United States v. Hendrix
LUCERO, J., dissenting.

       I respectfully dissent from the majority’s order and judgment, in which my

colleagues hold that the district court lacked jurisdiction under Fed. R. Crim. P. 35(a) to

add a term of supervised release two and a half hours after Hendrix’s initial hearing.

(Majority Order & J. 5.) I would permit the district court to correct its obvious error.

Under Rule 35(a), a court may “correct a sentence that resulted from arithmetical,

technical, or other clear error” within fourteen days after the “oral announcement of the

sentence.” Fed. R. Crim. P. 35(a), (c). Such post-judgment sentence corrections are

“intended to be very narrow and to extend only to those cases in which an obvious error

or mistake has occurred in the sentence.” United States v. McGaughy, 670 F.3d 1149,

1158 (10th Cir. 2012). I agree that the “scope of the district court’s authority under

[Rule 35(a)] is not broad,” United States v. Soto-Holguin, 163 F.3d 1217, 1221 (10th Cir.

1999), but I conclude this is one of those rare cases that presents an “other clear error”

under Rule 35(a).

       Hendrix initially requested an additional term of supervised release in lieu of

imprisonment. The trial court expressed concern that Hendrix would be a danger to

himself and the community, and recommended that the Bureau of Prisons consider civil

commitment. That the district court did not initially include a term of supervision

indicates an obvious failure to address Hendrix’s request. Because it was simply

correcting an obvious error, the district court had jurisdiction to add the term of

supervision. Judges are not automatons. There has to be some tolerance for a clear
oversight, and this was one. The correction was made before the sun had set on the

original sentence.

       This is not a case in which the court changed its mind in the intervening two and a

half hours. Cf. United States v. Gordon K., 257 F.3d 1158, 1161-62 (10th Cir. 2001)

(under Rule 35, the district court may not simply “change its mind about the

appropriateness of the sentence” based on new information); United States v. Bedonie,

413 F.3d 1126, 1129-30 (10th Cir. 2005) (same). In both Gordon K. and Bedonie, the

district court reversed course on the issue of restitution based on new information that

arose after the hearing ended. Gordon K., 257 F.3d at 1162 (district court impermissibly

considered new information concerning defendant’s ability to pay); Bedonie, 413 F.3d at

1130 (district court impermissibly ordered post-hearing briefing on restitution award). A

“clear error” cannot be premised on information the court did not have at the time of the

hearing. Gordon K., 257 F.3d at 1162. But this case does not involve discovery of new

information before the district court imposed the additional term of supervision; instead,

it is a case of a clear oversight by the district court. A district court does not exceed its

jurisdiction by correcting what it had “neglected to cover.”

       For this reason, I would affirm.




                                              -2-
