           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                           2     United States v. Robinson                    No. 03-4593
        ELECTRONIC CITATION: 2004 FED App. 0147P (6th Cir.)
                    File Name: 04a0147p.06                                   Dana M. Peters, UNITED STATES ATTORNEY, Columbus,
                                                                             Ohio, for Appellee. ON BRIEF: Gordon Hobson,
                                                                             FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,
UNITED STATES COURT OF APPEALS                                               Ohio, for Appellant. Dana M. Peters, UNITED STATES
                                                                             ATTORNEY, Columbus, Ohio, for Appellee.
                   FOR THE SIXTH CIRCUIT
                     _________________                                                           _________________

 UNITED STATES OF AMERICA , X                                                                        OPINION
            Plaintiff-Appellee, -                                                                _________________
                                   -
                                   -  No. 03-4593                               RONALD LEE GILMAN, Circuit Judge. Sterling
           v.                      -                                         Robinson pled guilty in July of 1997 to a drug trafficking
                                    >                                        crime. He was granted an early release from his term of
                                   ,                                         imprisonment in September of 2001. On September 26, 2002,
 STERLING ROBINSON,                -
         Defendant-Appellant. -                                              Robinson admitted at a hearing held before a magistrate judge
                                                                             that he had violated the terms of his supervised release. The
                                  N                                          magistrate judge recommended that Robinson’s supervised
      Appeal from the United States District Court                           release be revoked and that he be sentenced to a one-year
     for the Southern District of Ohio at Columbus.                          term of additional imprisonment to be followed by a four-year
    No. 95-00079—George C. Smith, District Judge.                            term of supervised release.

                      Argued: April 27, 2004                                    On January 8, 2003, the district court issued an order
                                                                             adopting the magistrate judge’s Report and Recommendation
               Decided and Filed: May 21, 2004                               “insofar as it recommends revocation.” The district court
                                                                             amended its order on November 25, 2003, adding a two-year
Before: GUY and GILMAN, Circuit Judges; BARZILAY,                            term of supervised release to the sentence that it had imposed
                    Judge.*                                                  on January 8, 2003. Robinson appeals his amended sentence
                                                                             on the ground that the district court lacked jurisdiction at that
                       _________________                                     point to amend the sentence. For the reasons set forth below,
                                                                             we REVERSE the judgment of the district court and
                             COUNSEL                                         REMAND with instructions to reinstate the sentence that was
                                                                             imposed on January 8, 2003.
ARGUED:    Gordon Hobson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.                                                 I. BACKGROUND
                                                                               Robinson pled guilty to one count of unlawful distribution
                                                                             of more than 50 grams of crack cocaine on July 23, 1997. He
    *
      The Honorab le Judith M. Barzilay, Judge for the United States Court   was sentenced to 96 months in prison, to be followed by 60
of International Trade, sitting by designation.

                                    1
No. 03-4593                   United States v. Robinson        3   4      United States v. Robinson                    No. 03-4593

months of supervised release. On September 21, 2001,                     Rule 36 of the Federal Rules of Criminal Procedure
Robinson was granted an early release from prison and began            provides that after giving any notice it considers
his term of supervised release. The United States Probation            appropriate, the Court may at any time correct a clerical
Office petitioned the district court on August 16, 2002 to             error in a judgment, order, or other part of the record, or
revoke Robinson’s supervised release because he was using              correct an error in the record arising from an oversight or
cocaine and marijuana and was failing to participate in a              omission.
substance-abuse program.
                                                                          The Court therefore finds that it has authority under
  On September 26, 2002, Robinson stipulated to the                    Rule 36 to correct the defendant’s supervised release
violations at a revocation hearing before a magistrate judge.          term that was omitted from his sentence on the
The magistrate judge issued a Report and Recommendation                revocation. The Court provided appropriate notice to all
on November 20, 2002, proposing that Robinson’s                        parties of this hearing on October 21, 2003. It was the
“supervised release be revoked and that [he] be sentenced to           Court’s intention to sentence the defendant to a two-year
a term of imprisonment of 12 months, such term of                      term of supervised release. Therefore, the Court’s
imprisonment to be followed by another term of supervised              January 8, 2003 order stands amended.
release of 4 years.” On January 8, 2003, the district court
adopted the report in part, stating: “The Court ADOPTS the         This appeal followed.
Magistrate Judge’s report and recommendation insofar as it
recommends revocation, and accordingly the Court                                           II. ANALYSIS
REVOKES defendant’s supervised release.”
                                                                   A. Standard of review
   Nine months later, based upon an inquiry from the Bureau
of Prisons regarding supervised release, the district court gave      The government argues that we should review the “district
notice that it intended to modify its January 8, 2003              court’s finding of clerical error . . . under a ‘clearly erroneous’
judgment. A hearing on its proposed modification was held          standard.” Robinson, however, does not seek review of the
on November 25, 2003. At the hearing, the district judge           district court’s finding that it had the intention on January 8,
stated the following:                                              2003 to include a term of supervised release. Instead,
                                                                   Robinson seeks review of the district court’s legal conclusion
    The matter was brought to the Court’s attention by a           that its failure to express an intended element of a sentence
  representative of the Bureau of Prisons, who asked the           constitutes a “clerical error” under Rule 36. Conclusions of
  Court for clarification of defendant’s term of supervised        law are reviewed de novo. See United States v. Portillo, 363
  release after he completes his 12-month term of                  F.3d 1161,1164 (11th Cir. 2004) (applying de novo review to
  imprisonment. Upon review of the Court’s January 8,              determine whether the district court had jurisdiction under
  2003 order, it appears that the Court has omitted the term       Rule 36 to correct the original written judgment that
  of supervised release to be served by the defendant.             sentenced the defendant).

                             ....
No. 03-4593                    United States v. Robinson         5    6    United States v. Robinson                    No. 03-4593

B. Does a district court’s power under Rule 36 to                     through a clerical mistake, is not within the purview of the
   “correct a clerical error in a judgment” include the               rule.”).
   authority to amend a sentencing order to conform
   with the court’s unexpressed intention?                              Robinson argues that if a district court fails to express its
                                                                      intention to include a new term of supervised release as part
   “Within 7 days after sentencing, the court may correct a           of the sentence, then the absence of such a term in the
sentence that resulted from arithmetical, technical, or other         sentence is not a simple clerical error amenable to correction
clear error.” Fed.R.Crim.P. 35(a). Beyond seven days,                 under Rule 36. Conversely, the government argues that
however, the court has jurisdiction to amend the sentence             because the district court found that “[i]t was the Court’s
only in conformity with Rule 36, which provides as follows:           intention to sentence the defendant to a two-year term of
“Clerical Error. After giving any notice it considers                 supervised release,” the omission of that term constitutes a
appropriate, the court may at any time correct a clerical error       clerical error regardless of whether the district court had ever
in a judgment, order, or other part of the record, or correct an      expressed that intention.
error in the record arising from oversight or omission.”
Fed.R.Crim.P. 36. Rule 36 was amended approximately one                  This court has already noted its agreement with the Second
year before the district court’s attempt to correct its error (the    and Seventh Circuits that Rule 36 “is not a vehicle for the
revised language went into effect on December 1, 2002).               vindication of the court’s unexpressed sentencing
Previously, the rule stated as follows: “Clerical mistakes in         expectations, or for the correction of errors made by the court
judgments, orders or other parts of the record and errors             itself,” Coleman, 2000 WL 1182460, at *2 (quoting United
arising from oversight or omission may be corrected by the            States v. Daddino, 5 F.3d 262, 264 (7th Cir.1993)); see also
court at any time and after such notice, if any, as the court         United States v. Werber, 51 F.3d 342, 343 (2d Cir. 1995)
orders.” The advisory committee notes, however, advise that           (“Rule 36 authorizes a court to correct only clerical errors in
the changes “are intended to be stylistic only.”                      the transcription of judgments, not to effectuate its
                                                                      unexpressed intentions at the time of sentencing.”).
  Although the federal rules do not define what constitutes a
clerical error, this court has held that “a clerical error must not     In support of its position, the government cites an earlier
be one of judgment or even of misidentification, but merely           unpublished opinion of this court, United States v. Libby, No.
of recitation, of the sort that a clerk or amanuensis might           95-1751, 1996 WL 117499 (6th Cir. Mar. 15, 1996). But
commit, mechanical in nature.” United States v. Coleman,              Libby is silent on the question of unexpressed sentencing
No. 99-5715, 2000 WL 1182460, at *2 (6th Cir. Aug. 15,                intentions, because that case involved “a discrepancy between
2000) (unpublished) (quoting United States v. Burd, 86 F.3d           an oral sentence and the written order.” Id. at *2. This court
285, 288 (2d Cir.1996)). Rule 36 has been consistently                in Libby affirmed the district court’s decision to amend a
interpreted as dealing only with clerical errors, not with            sentence by modifying a term of supervised release so that it
mistakes or omissions by the court. See 3 Charles Alan                conformed with what had been orally discussed at Libby’s
Wright, Nancy J. King & Susan R. Klein, Federal Practice &            hearing on his supervised-release violation. Id. Libby
Procedure § 611 (3d ed. 2004) (“It is only a clerical error that      therefore does not support the government’s position that
may be corrected at any time under [Rule 36]. An error                Rule 36 authorizes the amendment of a sentencing order to
arising from oversight or omission by the court, rather than          conform with an unexpressed sentencing intention.
No. 03-4593                   United States v. Robinson        7

  We also note that if the district court had made its judgment
self-sufficient by setting forth the terms of the sentence rather
than simply adopt by reference a portion of the magistrate’s
Report and Recommendation, the oversight that occurred in
this case would most likely never have happened. See 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 2785 (2d ed. 1995) (“[T]he
separate judgment required by the 1963 amendment [of Rule
58 of the Federal Rules of Civil Procedure] should be self-
sufficient and should not merely incorporate other documents
by reference . . . .”); Fed.R.Civ.P. 58(a)(1) (“Every judgment
and amended judgment must be set forth on a separate
document, but a separate document is not required for an
order disposing of [certain enumerated motions].”). This case
thus provides an instructive illustration of why the dispositive
terms of a judgment should be self-sufficient.
                    III. CONCLUSION
  For all of the reasons set forth above, we REVERSE the
judgment of the district court and REMAND with
instructions to reinstate the sentence that was imposed on
January 8, 2003.
