     13-1724-cr
     USA v. Jennings

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 21st day of April, two thousand fourteen.
 5
 6       PRESENT: ROBERT D. SACK,
 7                DENNIS JACOBS,
 8                RAYMOND J. LOHIER, JR.,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                     -v.-                                              13-1724-cr
16
17       KEITH JENNINGS,
18                Defendant-Appellant.1
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        MOLLY CORBETT, Research &
22                                             Writing Specialist, Federal
23                                             Public Defender’s Office, for
24                                             Lisa Peebles, Federal Public


                1
                  The Clerk of Court is directed to amend the
         caption as above.
                                                  1
 1                               Defender for the Northern
 2                               District of New York, Albany,
 3                               New York.
 4
 5   FOR APPELLEE:               ELIZABETH S. RIKER, Assistant
 6                               United States Attorney, Of
 7                               Counsel (John M. Katko,
 8                               Assistant United States
 9                               Attorney, Of Counsel, on the
10                               brief), for Richard S.
11                               Hartunian, United States
12                               Attorney for the Northern
13                               District of New York, Albany,
14                               New York.
15
16        Appeal from a denial of a pro se2 letter motion to
17   correct the judgment of conviction (McAvoy, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of the district court be
21   REVERSED.
22
23        Keith Jennings moves under Federal Rule of Criminal
24   Procedure 36 to correct the written judgment of conviction
25   entered on March 29, 2000, which states that he was
26   convicted of violating 21 U.S.C. § 848(b). We review the
27   district court’s decision to deny Jennings’s Rule 36 motion
28   de novo. See United States v. Burd, 86 F.3d 285, 287 (2d
29   Cir. 1996).
30
31        Jennings was convicted by a jury in the Northern
32   District of New York on multiple charges related to his
33   operation of a large-scale drug ring: (1) engaging in a
34   continuing criminal enterprise (“CCE”) under 21 U.S.C. §
35   848(a) and (c); (2) conspiracy to possess with intent to
36   distribute and to distribute cocaine, crack cocaine and
37   marijuana under 21 U.S.C. §§ 846, 841(a)(1); (3) two counts
38   of possession with intent to distribute and distribution of
39   cocaine under 21 U.S.C. § 841(a)(1); (4) two counts of
40   possession with intent to distribute and distribution of
41   cocaine base under 21 U.S.C. § 841(a)(1); and (5) conspiracy
42   to commit money laundering under 18 U.S.C. §§ 1956(h),
43   (a)(1)(A)(i), (a)(1)(B)(i).


         2
              Jennings appeared pro se below, but now is
     represented by counsel.
                                  2
 1        Jennings was sentenced to three life terms (one on the
 2   § 848 count), and three terms of twenty years, all to run
 3   concurrently.3 Jennings failed in all of his post-
 4   conviction initiatives: a direct appeal; a motion under 28
 5   U.S.C. § 2255; five motions for reduction of sentence under
 6   18 U.S.C. § 3582(c); and motions for reconsideration and
 7   clarification and two appeals. We assume the parties’
 8   familiarity with the underlying facts, the procedural
 9   history, and the issues presented for review.
10
11        Section 848(c) defines engagement in a “continuing
12   criminal enterprise” as requiring, among other things, that
13   the defendant had a supervisory position with respect to
14   five or more persons, and obtained substantial income or
15   resources from the offense. Subsection (a) prescribes a
16   penalty of 20 years to life for anyone who engages in a CCE.
17   Subsection (b) sets forth a penalty of mandatory life
18   imprisonment if the defendant was one of the principal
19   leaders of the enterprise, and the violation involved at
20   least 300 times the quantity of a substance described in 21
21   U.S.C. § 841(b)(1)(B).
22
23        The Government claims that Jennings actually was
24   sentenced under subsection (b) and that the requisite
25   findings under that subsection were never submitted to the
26   jury. This would have been error as “it was the
27   government’s burden to prove all the elements of section
28   848(b) beyond a reasonable doubt[.]” United States v.
29   Torres, 901 F.2d 205, 229 (2d Cir. 1990).
30
31        However, it does not appear that Jennings’ life
32   sentence was imposed under subsection (b). Rather, the
33   district court arrived at the life sentence under § 848 by a
34   Guidelines calculation that properly took into account a
35   broad range of factors, some of which would have been
36   relevant to a conviction under subsection (b).
37
38        The only error is in the written judgment. Under
39   Federal Rule of Criminal Procedure 36, “a district judge, at
40   any time, [may] amend the written judgment so that it
41   conforms with the oral sentence pronounced by the court.”
42   United States v. Werber, 51 F.3d 342, 347-48 (2d Cir. 1995).
43   We therefore remand for the district court to amend the


         3
              The narcotics conspiracy count was dismissed at
     sentencing as a lesser included offense of § 848.
                                  3
 1   judgment to reflect that Jennings was not convicted of a
 2   violation of 21 U.S.C. § 848(b). Beyond that, no further
 3   proceedings are required.
 4
 5        For the foregoing reasons, we hereby REVERSE the denial
 6   of Jennings’ Rule 36 motion and REMAND for clerical
 7   correction of the written judgment of conviction.
 8
 9                              FOR THE COURT:
10                              CATHERINE O’HAGAN WOLFE, CLERK
11
12
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