                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2006

USA v. Polanco
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2532




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Recommended Citation
"USA v. Polanco" (2006). 2006 Decisions. Paper 291.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/291


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                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 06-2532
                                ________________

                        UNITED STATES OF AMERICA

                                          v.

                               AQUILE POLANCO,
                                 a/k/a WILLIAM
                                a/k/a CHAMACO

                                  Aquile Polanco,
                                       Appellant
                   ____________________________________

                 On Appeal From the United States District Court
                    For the Eastern District of Pennsylvania
                          (D.C. Crim. No. 01-cr-00031)
                   District Judge: Honorable Paul S. Diamond
                 _______________________________________


                    Submitted Under Third Circuit LAR 34.1(a)
                                October 25, 2006

      Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES.

                              (Filed October 26, 2006)

                            _______________________

                                   OPINION
                            _______________________

PER CURIAM

    Aquile Polanco appeals the District Court’s denial of his motion to correct a
clerical error under Fed. R. Crim. P. 36. For the following reasons we will affirm.

       In 2001 Polanco pled guilty to two drug offenses, for which he was sentenced to,

inter alia, 124 months’ imprisonment and 20 years’ supervised release. At sentencing the

court initially stated that “a term of supervised release in this kind of activity should be 20

years,” tr. at 17, but went on to say that “[u]pon release from imprisonment, the defendant

shall be placed on supervised release for a term of five years.” Tr. at 19. The court then

corrected itself, saying: “Now, I just want to be sure that the supervised release term was

for 20 years. And, I want to be sure that that’s the sentence that I have imposed in this

case.” Tr. at 21. Accordingly, the judgment and commitment order reflect a term of 20

years’ supervised release. This Court affirmed Polanco’s sentence.

       Polanco then unsuccessfully sought collateral relief via 28 U.S.C. § 2255. While

his request for a certificate of appealability was pending in this Court, he filed a motion in

the District Court to correct a clerical error via Rule 36. He argues that the judgment and

commitment order increased the term of supervised release from five to 20 years and that

the District Court lacked jurisdiction to do so because more than seven days had passed

since it imposed sentence. The District Court denied the motion. This appeal followed.1



   1
     We have jurisdiction under 28 U.S.C. § 1291. Evidently we have yet to articulate the
standard of review for the denial of a Rule 36 motion. Although there is disagreement
among the courts of appeal (see, e.g., United States v. Niemiec, 689 F.2d 688 (7th Cir.
1982) (abuse of discretion); United States v. Dickie, 752 F.2d 1398 (9th Cir. 1985)
(clearly erroneous)), we need not resolve that issue here because under any available
standard we would affirm.


                                              2
       Polanco focuses on the portion of the sentencing transcript where the District

Court appeared to impose five years of supervised release, conveniently ignoring the

passages flanking it where the court made it clear that Polanco should receive 20 years’

supervised release. It is plain that the court meant to impose 20 years’ supervised release

rather than five and, thus, that the judgment and commitment order contains no clerical

error in that regard. Accordingly, we will affirm the order of the District Court.




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