                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4656



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHN WAYNE CARDWELL,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(4:02-cr-60025-NKM)


Submitted:   January 26, 2007              Decided:   March 2, 2007


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Randy V. Cargill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Donald R. Wolthuis, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            John   Wayne   Cardwell   was     convicted   by   a    jury   of

solicitation to commit murder (Count 1) and conspiracy to murder a

government witness (Count 5) and was initially sentenced in 2003 to

131 months of imprisonment for Count 1 and 60 months for Count 5,

to   run   concurrently.      On    appeal,    we   affirmed       Cardwell’s

convictions, but vacated and remanded for resentencing in light of

United States v. Booker, 543 U.S. 220 (2005).        See United States v.

Cardwell, 433 F.3d 378 (4th Cir. 2005).          On remand, the district

court reduced Cardwell’s sentence to 121 months for Count 1 and

kept his sentence for Count 5 the same.          Cardwell appeals again,

alleging that he was erroneously sentenced outside his advisory

sentencing range.       For the reasons that follow, we vacate and

remand.

            At the resentencing hearing, the district court stated on

the record that it was sentencing Cardwell under the advisory

Federal Sentencing Guidelines based on his total offense level of

32, the same total offense level used in his prior sentencing, and

as recommended in Cardwell’s previously calculated presentence

report.    (J.A. 54).   With a total offense level of 32, Cardwell’s

sentencing range under the Guidelines was 121 to 151 months of

imprisonment.      After considering the sentencing factors in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the court orally

sentenced Cardwell to 121 months of imprisonment for Count 1.


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(J.A.    62).     The    amended   criminal       judgment      reflects    the    new

121-month sentence.         The “Statement of Reasons” filed with the

criminal     judgment,    however,   conflicts          with    the   court’s     oral

pronouncements at sentencing.             The “Statement of Reasons” notes

that Cardwell was resentenced based on a total offense level of 28,

which would give him a sentencing range of 78 to 97 months of

imprisonment, and that his 121-month sentence was, therefore, an

upward departure.        (J.A. 87-88).

             Under Fed. R. Crim. P. 36, “[a]fter 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.”                          A

district court’s unambiguous oral pronouncement at sentencing is

not negated by a subsequent written judgment that does not reflect

the oral sentence.         See Rakes v. United States, 309 F.2d 686,

687-88 (4th Cir. 1962) (addressing correction under Rule 35).                        A

court “should carry out the true intention of the sentencing judge

as   this   may   be    gathered   from    what    he    said    at   the   time    of

sentencing.”      United States v. Morse, 344 F.2d 27, 30 (4th Cir.

1965).      It is normally the rule that, where a conflict exists

between an orally pronounced sentence and the written judgment, the

oral sentence will control.          United States v. Osborne, 345 F.3d

281, 283 n.1 (4th Cir. 2003).        The remedy is to vacate the judgment

and remand to the district court for the purpose of correcting the


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written judgment to conform to the oral sentence.           Morse, 344 F.2d

at 30-31 & n.1; Rakes, 309 F.2d at 687-88.

              We thus vacate and remand Cardwell’s sentence for the

district court to correct its “Statement of Reasons” under Rule 36.

The   court    should   correct   its   “Statement   of   Reasons”   form   to

correspond to its oral pronouncement at sentencing.             We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                      VACATED AND REMANDED




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