ALD-272                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1104
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                             ADOLPHUS WILLIAM CATO,
                                                       Appellant.
                        __________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-14-cr-00315-001)
                          District Judge: Wendy Beetlestone
                       __________________________________

                    Submitted on a Motion for Summary Affirmance
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      July 26, 2018

              Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges


                             (Opinion filed October 16, 2018)

                                        _________

                                        OPINION*
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Adolphus William Cato, a federal prisoner, appeals from an order of the District

Court denying his motion pursuant to Fed. R. Crim. P. 36. For the reasons that follow,

we will summarily affirm.

       Cato pleaded guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C.

§ 371, five counts of bank fraud, in violation of 18 U.S.C. § 1344, and one count of

aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1). At sentencing, the

District Court applied a 12-level increase to Cato’s base offense level of 7. Factoring in

other adjustments and a downward departure for acceptance of responsibility, Cato’s total

offense level was 22 and his criminal history category was III. In light of the fact that the

aggravated identity theft conviction required a mandatory consecutive prison term of 24

months, Cato’s effective advisory Guidelines range was 75 to 87 months in prison. Cato

was sentenced on June 21, 2016 in the United States District Court for the Eastern

District of Pennsylvania to “56 months on the bank fraud counts, followed by a

mandatory consecutive sentence of 24 months for aggravated identity theft,” but the

original sentencing transcript stated the total term of imprisonment as “18 months,”

instead of 80 months. See Docket Entry No. 539, at 86. The mistake was repeated on pp.

92 and 94 of the original transcript. The written criminal Judgment, however, reflected a

sentence of 80 months’ imprisonment.

       Cato appealed, contending that the District Court incorrectly calculated the

intended loss amount attributable to him. We rejected this argument as meritless and

affirmed, see United States v. Cato, 718 F. App’x 123, 126 (3d Cir. 2017).

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       On December 26, 2017, Cato filed a Rule 36 motion to correct a clerical error in

the judgment of sentence. Fed. R. Crim. P. 36 (“After giving any notice it considers

appropriate, the court may at any time correct a clerical error in a judgment, order, or

other part of the record, or correct an error in the record arising from oversight or

omission.”). Cato alleged that, although the written Judgment declared a sentence of

imprisonment of 80 months, the transcript of the sentencing hearing showed that the

District Court announced a sentence of “18 months.” He contended that the sentence

imposed in open court controls. Cato attached to his Rule 36 motion affidavits from his

mother and brother asserting that they heard the District Judge say “18 months” and not

“80 months.” In an order entered on January 3, 2018, the District Court denied the

motion without explanation. However, eight days later an amended sentencing transcript

was filed on the criminal docket, which reflected that the three references to “18 months”

in the original transcript had been changed to “80 months.” See Docket Entry No. 605.

       Cato appeals. Cato filed his pro se brief seeking reversal of the District Court’s

order denying his motion on the basis that, when a sentenced pronounced in open court

conflicts with a written Judgment, the sentence pronounced in open court controls. The

Government then moved for leave to be excused from filing a brief and for summary

affirmance. Cato has submitted a response in opposition to the Government’s motion for

summary affirmance and a motion for bail.

       We will grant the Government’s motion and summarily affirm because no

substantial question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6.

Where an oral sentence and the written Judgment are in conflict, “the oral sentence

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prevails,” see United States v. Faulks, 201 F.3d 208, 211 (3d Cir. 2000) (“[W]hen the two

sentences are in conflict, the oral pronouncement [in the defendant’s presence] prevails

over the written judgment.”). Here, however, there is no actual conflict, only a

transcription error. Although the District Court did not state its finding in summarily

denying Cato’s Rule 36 motion, it is apparent that the Court concluded that the original

transcript was in error, and that in fact the oral pronouncement of sentence in open court

matched the written Judgment.

       We have reviewed the original transcript. It reflects that the District Court stated

that “pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that

the Defendant, Adolphus Cato is hereby committed to the custody of the Bureau of

Prisons to be imprisoned for a term of 56 months, on … Counts III, IV, VI, VII and VIII

and a term of 56 months on Count I to be served concurrently and 24 months on Count

IX to be served consecutively to Counts III, IV, VI, VII and VIII, for a total term of 18

months.” See Docket Entry No. 539, at 86. It is obvious from the full statement of the

sentence on p. 86 of the original transcript that “18 months” was a transcription error

because 56 + 24 equals 80, not 18. See generally United States v, Bennett, 423 F.3d 271,

278 (3d Cir. (2005) (defining clerical error for purposes of Rule 36 as one of “recitation,

of the sort that a clerk or amanuensis might commit”). We note that Cato tried but was

unsuccessful in obtaining an affidavit from the court reporter in support of his Rule 36

motion.

       The District Court thus properly corrected the original transcript, removing any

conflict and any basis for the relief requested by Cato in his Rule 36 motion. In his

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response in opposition to the Government’s motion for summary affirmance, Cato states

that he has not received a copy of the amended sentencing transcript, but it is attached to

the Government’s motion for summary affirmance and that pleading was served on Cato

by first class mail, according to the attached certificate of service.

       For the foregoing reasons, we will grant the Government’s motion and will

summarily affirm the order of the District Court denying Cato’s Rule 36 motion. Cato’s

motion for bail pending appeal is denied. The Government’s motion seeking leave to be

excused from filing a brief is granted.




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