                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 3, 2013
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 12-2089
 ADRIAN LUNA-ACOSTA,

        Defendant-Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. No. 1:11-CR-02084-JEC-1)


Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.

Jennifer M. Rozzoni, Assistant United States Attorney, (Kenneth J. Gonzales,
United States Attorney, with her on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.


Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.


BRISCOE, Chief Judge.



      Adrian Luna-Acosta appeals the district court’s written judgment imposing

a sentence of thirty-three months’ imprisonment, filed five months after the
district court had orally announced a sentence of twelve months’ imprisonment.

Luna-Acosta argues that the district court lacked jurisdiction under Fed. R. Crim.

P 35(a) to modify his twelve-month sentence. Exercising jurisdiction under 28

U.S.C. § 1291, we reverse and remand with instructions to vacate the thirty-three

month sentence and file a written judgment consistent with the orally announced

sentence of twelve months. 1

                                         I

      In August 2011, the government filed a one-count information charging

Luna-Acosta with illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b). R.

Vol. I at 7. Luna-Acosta subsequently entered a plea agreement under the “fast

track” program. 2 Under that agreement, the government agreed to a downward

      1
         Following oral argument on March 7, 2013, we concluded Luna-Acosta
would prevail in his appeal and issued an order March 8, 2013, directing a limited
remand for the purposes of releasing him from prison. At that time, we indicated
that an opinion would follow.
      2
         The so-called “fast track” program allows a defendant, upon motion of
the government, to obtain up to a four-level downward departure from his offense
level in exchange for pleading guilty pursuant to an early disposition program.
See U.S.S.G. § 5K3.1. Federal prosecutors in states bordering Mexico first
developed these “fast track” programs in the early 1990s to handle the large
number of illegal re-entry and other immigration cases they were prosecuting.
United States v. Lopez-Macias, 661 F.3d 485, 486 (10th Cir. 2011). These
programs received Congressional approval as part of the PROTECT Act, Pub. L.
No. 108-21, 117 Stat. 650 (2003), which directed the Sentencing Commission to
promulgate a policy statement authorizing downward departures of up to four
levels, upon motion of the government, as part of early disposition programs
approved by the Attorney General and the United States Attorney. Lopez-Macias,
661 F.3d at 486-87. The Sentencing Commission has since promulgated U.S.S.G.
                                                                      (continued...)

                                         2
departure of Luna-Acosta’s final offense level for the purposes of calculating his

guideline sentence. Id. at 11. In return, Luna-Acosta “agree[d] not to seek any

further reduction, departure, deviation, or variance in the Final Adjusted Offense

Level or the Criminal History Category, through motion or by argument at

sentencing pursuant to 18 U.S.C. §§ 3553(a)(1-7), United States v. Booker, 543

U.S. 220 (2005), or otherwise.” Id. at 13 (emphasis omitted). He also agreed that

he would not appeal “any sentence within the advisory guideline range as

determined by the Court.” Id. at 14 (emphasis omitted). Luna-Acosta

subsequently pled guilty in August 2011.

      The presentence report (PSR) prepared following Luna-Acosta’s plea

calculated an offense level of eighteen after factoring in the downward departure

set forth in the plea agreement. R. Vol. II at 5. The resulting guideline range was

thirty-three to forty-one months’ imprisonment. Id. II at 10. The offense level

contained in the PSR was higher than Luna-Acosta had expected. Luna-Acosta

contends that, when the government offered the plea agreement, it told him that it

anticipated an adjusted offense level of eight or eleven. Aplt. Br. at 8. This

would have resulted in a guideline range of at most twelve to eighteen months’

imprisonment. Id. Luna-Acosta’s counsel apparently sent “an informal written

objection” to the probation office. Id. at 10 n.5.


      2
      (...continued)
§ 5K3.1.

                                           3
      The district court held a sentencing hearing on October 19, 2011. R. Vol.

III at 7. The district court asked whether there was anything the parties wanted to

say before sentencing. Id. at 9. Counsel for Luna-Acosta explained to the court

the discrepancy between what the government told Luna-Acosta when offering the

plea agreement and the offense level that was set forth in the PSR. Counsel

argued it would be unfair to sentence Luna-Acosta based on the offense level in

the PSR because Luna-Acosta had relied on the government’s representation when

he entered into the plea agreement. Id. at 10-11.

      After reciting the calculations in the PSR and the departure from the plea

agreement, the district court said it would impose a sentence of thirty-three

months’ imprisonment and two years’ supervised release. The court did not

address Luna-Acosta’s argument regarding the higher than anticipated offense

level. Id. at 13-14. Defense counsel then noted that new sentencing guidelines

would go into effect on November 1, 2011, and they would no longer recommend

supervised release in illegal re-entry cases. Id. at 14. Counsel requested that the

district court either eliminate the term of supervised release, or “continue the

sentencing until after November 1[, 2011].” Id. The district court immediately

agreed: “All right. We’ll continue it until after November 1.” Id. at 15.

      The court held a second sentencing hearing on November 16, 2011. Id. at

17. Defense counsel reminded the court that it had continued the hearing until

after the new sentencing guidelines went into effect, and that the new guidelines

                                          4
no longer recommended supervised release in illegal re-entry cases. Id. at 19. In

addition, while acknowledging that the court “had previously indicated that it was

going to sentence my client to 33 months,” counsel asked the court to reconsider

that sentence “for the reasons in [her] sentencing memo.” Id. at 19. Although she

used the term “sentencing memo,” counsel was actually referring to the informal

objection she had sent to the probation office. Aplt. Br. at 10 n.5.

      When asked by the court to restate Luna-Acosta’s arguments, counsel

explained how the government had calculated a higher offense level in the PSR

than was represented when it offered the plea agreement. R. Vol. III at 20.

Counsel also reiterated that the guidelines no longer recommended supervised

release in reentry cases. Id. at 20-21. The court then asked the prosecutor, “Does

the government have anything you want to say.” Id. at 21. The prosecutor said,

“No, Your Honor.” Id.

      The court then proceeded to sentence Luna-Acosta, saying it had

considered the factual findings in the PSR and the 18 U.S.C. § 3553(a) factors.

Id. This time, though, the court reduced the sentencing range from thirty-three to

forty-one months’ imprisonment to twelve to eighteen months’ imprisonment. Id.

The district court then imposed a sentence of twelve months’ imprisonment,

without any term of supervised release.

      More than five months later, the district court reversed course. Without

warning to either party, the district court entered on April 26, 2012, a written

                                          5
judgment imposing a sentence of thirty-three months’ imprisonment without

supervised release. 3 R. Vol. I at 30-31. In an accompanying sentencing

memorandum, the court explained that it lacked jurisdiction at the November 16

hearing to impose the twelve-month sentence. The court reasoned that it had

continued sentencing only for the purposes of setting the term of supervised

release, and that the thirty-three month sentence imposed on October 19 was a

final sentence. Id. at 20-21. The court concluded that Fed. R. Crim. P. 35 was its

only potential authority for modifying that sentence, but that by November 16 any

sentence modification was time barred under Rule 35(a). The court also said that

Luna-Acosta’s request for a lower sentence violated the plea agreement. Id. at

21.

      The court went on to state that it had always intended to imposed a thirty-

three month sentence, although it noted this intention was irrelevant when

deciding the question of whether it had jurisdiction to subsequently modify that

sentence. Id. at 26. While the court said it was “acknowledg[ing]” its error in re-

sentencing the defendant to twelve months’ imprisonment, it also noted its large

sentencing caseload, the defense attorney’s imprecise reference to the “sentencing

memorandum,” and the fact that “neither attorney adequately apprised [the court]

of the circumstances in the Second Hearing [on November 16].” Id. at 21 & n.2.



      3
          An amended judgment was filed April 27, 2012.

                                         6
      After Luna-Acosta filed his notice of appeal, the government filed a motion

to enforce the appellate waiver in the plea agreement. In response, Luna-Acosta

argued that his plea agreement allowed him to pursue his appeal because the

district court acted without jurisdiction in filing its April 2012 written judgment

memorializing a thirty-three month sentence. A three-judge panel of our court

denied the government’s motion without prejudice in a per curiam order, because

“[t]o our knowledge, this court has not addressed whether a defendant can waive

in a plea agreement a district court’s alleged unauthorized modification of a

sentence in violation of Rule 35(a).” United States v. Luna-Acosta, No. 12-2089,

at 5 (10th Cir. Sept. 25, 2012).

      The government now contends that the entire sentencing was final at the

end of the first hearing on October 19, 2011. The government argues that the

district court lacked jurisdiction to change any part of the sentence after that date

unless the court made corrections that fell within the limited circumstances

permitted by Rule 35(a). Therefore, the district court acted without jurisdiction

when it reduced Luna-Acosta’s term of imprisonment and removed the term of

supervised release at the November 16 hearing. However, we note that the

government does not cross appeal the district court’s failure to include the two

years of supervised release in its written judgment. Aplee. at 26 n.8. It only asks

that we affirm the district court’s written judgment imposing thirty-three months’

imprisonment.

                                           7
                                         II

      As a threshold matter, we conclude Luna-Acosta did not waive his right to

appeal. Under United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004), we

must determine “if the disputed appeal falls within the scope of the appellate

waiver.” A district court’s ability to modify a sentence under Rule 35(a) is

jurisdictional. See United States v. McGaughy, 670 F.3d 1149, 1158 (10th Cir.

2012). When Luna-Acosta waived the right to appeal his “sentence,” he did not

waive his right to appeal a judgment entered without jurisdiction. As the

Seventh Circuit explained in a similar case:

            The terms of a plea agreement are interpreted according to the
            parties’ reasonable expectations at the time they entered it, and
            here it seems clear that the parties expected the term ‘sentence’
            to include only the events of the January 24 sentencing
            hearing, during which the court had jurisdiction to sentence
            Vega, and not any later attempt by the court to amend Vega’s
            sentence absent jurisdiction.

United States v. Vega, 241 F.3d 910, 912 (7th Cir. 2001) (per curiam) (citation

omitted); see also United States v. Lonjose, 663 F.3d 1292, 1301 (10th Cir. 2011)

(citing Vega with approval). 4 We agree with the Seventh Circuit’s reasoning in



      4
         The Seventh Circuit also noted that any agreement that purported to
waive the defendant’s ability to make that argument would have nonetheless been
“ineffectual because a defendant cannot confer jurisdiction on a court by way of
plea agreement.” Vega, 241 F.3d at 912. Cf. United States v. McGaughy, 670
F.3d 1149, 1155 (10th Cir. 2012) (“Subject matter jurisdiction cannot be
conferred or waived by consent, estoppel, or failure to challenge jurisdiction early
in the proceedings.”) (quotation omitted).

                                         8
Vega and adopt it as our own, concluding this appeal falls outside of the scope of

Luna-Acosta’s appellate waiver. 5

                                         III

      We review de novo the district court’s determination that it lacked

jurisdiction to modify a sentence. United States v. Blackwell, 81 F.3d 945, 947

(10th Cir. 1996). Under Fed. R. Crim. P. 35(a), a district court “may correct a

sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin

14 days after sentencing.” The rule defines “sentencing” as “the oral

announcement of the sentence.” Fed. R. Crim. P. 35(c). As stated above, we

have held this 14-day time limit is jurisdictional. McGaughy, 670 F.3d at 1158.

      The pivotal issue for us to determine is when the “oral announcement” of

the sentence occurred for purposes of Rule 35. Once the oral announcement of

the sentence becomes final, it can only be modified within the 14 days following

sentencing, and even then only in limited circumstances. The district court

addressed Luna-Acosta’s sentence three different times: twice in open court and

finally in a written judgment. These “sentencings” resulted in three different

outcomes:



      5
        The government appears to concede this point, as it only argues we
should apply the appellate waiver if we agree with it on the merits of the appeal.
See Aplee. Br. at 26 (“Because the district court maintained jurisdiction to
sentence Luna-Acosta to 33 months imprisonment, his appeal should be dismissed
pursuant to the plea agreement’s appellate waiver.”) (emphasis omitted).

                                          9
      — October 19, 2011 (open court): 33 months’ imprisonment, 2 years’
      supervised release

      — November 16, 2011 (open court): 12 months’ imprisonment, no
      supervised release

      — April 26, 2012 (written judgment): 33 months’ imprisonment, no
      supervised release

In its April 26 ruling, the district court held that the sentence of imprisonment

was final after the first hearing, but that the sentence of supervised release was

not final until after the second hearing. Luna-Acosta argues that neither part of

the sentence was final until the end of the second hearing. The government

argues that both parts of the sentence were final at the end of the first hearing.

      As an initial matter, Rule 35 does not conclusively answer the question

presented. Rule 35(c) defines sentencing as “the oral announcement of the

sentence,” nothing in the rule requires or suggests that whatever term or terms of

imprisonment the district court first utters during a hearing is to be treated as the

sentence for purposes of the rule. Treating the “sentence” as the oral

announcement “is grounded in the Sixth Amendment which requires that a

defendant be physically present at sentencing.” United States v. Townsend, 33

F.3d 1230, 1231 (10th Cir. 1994). A 2004 amendment added this definition to the

rule to make clear that the time for modification under Rule 35(a) runs from the

oral announcement of a sentence, as opposed to from the filing of the written

judgment. Fed. R. Crim. P. 35 advisory committee’s note (“After further


                                          10
reflection, and with the recognition that some ambiguity may still be present in

using the term ‘sentencing,’ the Committee believes that the better approach is to

make clear in the rule itself that the term ‘sentencing’ in Rule 35 means the oral

announcement of the sentence.”). Courts had been divided on this issue prior to

this clarification. Id.

      Although our court has not addressed the issue of what constitutes the “oral

announcement of the sentence,” the Fifth Circuit has held that a sentence is not

final—and Rule 35(a) does not apply—when there is “no formal break in the

proceedings from which to logically and reasonably conclude that sentencing had

finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010). In Meza,

the district court orally announced a sentence before learning from defense

counsel that the guideline sentence had been improperly calculated. The district

court then promptly revised the guideline calculation and announced a new

sentence. Id. at 506-07.

      In Meza, the Fifth Circuit concluded that the district court’s change of a

sentence immediately after it first announced a sentence was not a modification

that must comply with Rule 35(a). The court refused to impose the “draconian

rule” that “the district court’s initial formulation of the sentence is the type which

instantaneously strips the district court of its jurisdiction to sentence criminal

defendants and immediately vests such jurisdiction with this court.” Id. at 508.

The Fifth Circuit said that the party’s application for modification had come

                                          11
“within the same hearing, on the same day, within moments of the original

pronouncement.” Id. “The unbroken sequence of actions in this case . . .

counsels in favor of affirming the judgment and sentence of the district court and

construing the totality of the events as one sentence.” Id.; see also United States

v. Gerezano-Rosales, 692 F.3d 393, 397 (5th Cir. 2012) (holding district court

had jurisdiction to alter sentence when “the court changed its initial formulation

before it adjourned the sentencing hearing”); United States v. Burgos-Andújar,

275 F.3d 23, 30-31 (1st Cir. 2001) (initial announcement of sentence only

“tentative” when court permitted defendant to continue her allocution).

      We view the Fifth Circuit’s conclusion as reasonable given the practical

realities of sentencing. That view is further bolstered by our precedent regarding

the preservation of errors for appellate review. We have held that in order to

preserve a sentencing issue for appellate review defendants must first raise in

district court even those procedural objections that cannot be raised until after the

district court has announced its sentence, such as the failure to adequately explain

a sentencing decision. United States v. Gantt, 679 F.3d 1240, 1247 (10th Cir.

2012) (“To preserve that complaint for appeal, Defendant needed to alert the

court that its explanation was inadequate, which ordinarily would require an

objection after the court had rendered sentence.”). Requiring a defendant to first

raise such issues after the sentence is imposed provides the district court with an

opportunity to correct errors before, and perhaps in lieu of, appellate review. Id.

                                          12
Our requiring the defendant to raise the procedural objections after sentencing,

but before appeal, would be meaningless if a district court could not—even if it or

one of the parties caught a mistake seconds after it was made—correct its initial

oral announcement except for the limited circumstances listed in Rule 35(a). In

light of this precedent, we adopt the Fifth Circuit’s standard for determining when

an oral announcement becomes a “sentence” for the purposes of Rule 35(a).

      Applying this “formal break” standard to the case at bar, we conclude that

the sentence was not final until the end of the second hearing held on November

16, 2011. Most important is the very fact the district court continued the first

hearing on October 19 without finalizing all of the terms of the sentence. Cf.

United States v. Ross, 557 F.3d 237, 238 (5th Cir. 2009) (applying limits of Rule

35(a) when district court sua sponte scheduled a second hearing after initial

sentencing hearing had concluded). At that point, the parties had not had the

opportunity to raise any other objections, and Luna-Acosta had not had an

opportunity to allocute. These circumstances all suggest the oral announcement

of the sentence was not yet final.

      Indeed, although the district court stated in its April 26 ruling that it

intended to continue the sentencing only as to the term of supervised release, it is

not clear how the parties would have been aware of that at the time the first

hearing ended on October 19. At the October 19 hearing defense counsel raised

the issue of supervised release immediately after the district court announced a

                                          13
sentence. The district court agreed to continue the sentencing hearing to a later

date and the hearing ended. Further, the district court did not state that it was

limiting the second hearing to the determination of whether or not supervised

released would be imposed:

             [Counsel]: Your Honor, I’m sorry. Would the Court
             reconsider the supervised release? Because in less than two
             weeks, there won’t be supervised release for reentry cases.

             THE COURT: Tell me again what you’re saying. I know
             about what’s happening.

             [Counsel]: Right. But it’s going to happen on November 1, so
             it’s like a week and a half, and I just think that given that we
             know that’s going to happen, the disparity of treatment, that he
             happened to be getting sentenced a week before that, I’m
             asking you not to give him supervised release.

             Or continue the sentencing until after November 1.

             THE COURT: All right. We’ll continue it until after
             November 1.

             [Counsel]: Okay. Thank you.

             THE COURT: Yes.

             [Counsel]: Thank you.
                  (Proceedings concluded at 10:30 a.m.)

R. Vol. III at 14-15. Based on our review of the transcript, the parties could not

have known at the time the October 19 hearing ended that they would be barred

from raising any other objections. But see District Court Sentencing Memo, ROA

Vol. I at 20-21 (“Given the colloquy post-sentence during the First Hearing, it is


                                          14
clear that all present, including Defendant, understood me to be continuing the

hearing in order to reconsider only the supervised release and not the 33-month

term of imprisonment that I imposed.”). Thus, even it were possible for the

district court to finalize only part of a sentence at the hearing—a proposition

neither the government nor the defendant supports—the transcript does not

indicate that the court intended to finalize the term of imprisonment while leaving

the term of supervised release open.

       The government attempts to distinguish the circumstances in this case from

cases such as Meza by arguing that those cases “all involve a change of a

sentence that occurred during one continuous hearing held on one single day.”

Aplee. Br. at 21-22. But the government fails to explain why the end of the day

would serve as a logical, formal break in this case, where the district court,

without any objection, decided to continue the sentencing hearing to a later date.

Moreover, the government’s approach would seemingly force a district court to

finalize a sentence in a single day—even if the defendant raised at the hearing a

post-sentencing objection that required additional research and contemplation by

the district court.

       The government also argues that the failure of the district court to offer

Luna-Acosta the opportunity to allocute should not determine whether or not the

sentence was finalized for the purposes of Rule 35(a). The government points out

that Luna-Acosta did not allocute at the second hearing either. If this were

                                          15
crucial in determining finality, the government says, the second sentence would

also remain open.

      But that misunderstands Luna-Acosta’s argument. He is not arguing that

the absence of allocution always prevents the oral announcement of a sentence

from becoming final. Rather, he argues that the absence of allocution should be

among the facts considered when deciding whether the oral announcement on

October 19 resulted in a final sentence. And, here, the totality of the

circumstances suggest that the sentencing was not yet complete at the end of the

hearing on October 19.

                                         IV

      Because the sentence was not final for the purposes of Fed. R. Crim. P.

35(a) at the end of the first hearing on October 19, the district court had

jurisdiction to impose the twelve-month sentence at the second hearing on

November 16. However, the district court lacked jurisdiction under Rule 35(a)

when it altered that twelve-month sentence of imprisonment in its written

judgment on April 26. We REVERSE and REMAND with instructions for the

district court to vacate its written judgment of April 26, 2012, and enter a new

judgment consistent with the November 16, 2011, sentencing.




                                         16
