                                                                                 [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                           FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                            ________________________                  ELEVENTH CIRCUIT
                                                                           02/25/2000
                                                                       THOMAS K. KAHN
                                     No. 98-5323                            CLERK
                             ________________________
                         D. C. Docket No. 97-8123-CR-DTKH

UNITED STATES OF AMERICA,
                                                                 Plaintiff-Appellee,

                                           versus

SCOTT WILLIAM MORRISON, a.k.a.
Scott Willie Morrison, a.k.a. Donald Aitcheson,
a.k.a. Donald Howard Aitcheson, a.k.a.
Donald Gary Aitcheson,

                                                                 Defendants-Appellants.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                   (February 25, 2000)

Before ANDERSON, Chief Judge, CARNES, Circuit Judge and OAKES*, Senior
Circuit Judge.

______________________
       *
         Honorable James L. Oakes, Senior U.S. Circuit Judge for the Second Circuit, sitting by
designation.
CARNES, Circuit Judge:
      Scott William Morrison appeals his 46 month sentence for reentering the

United States without the permission of the Attorney General after deportation, in

violation of 8 U.S.C. § 1326(a). His appeal presents us with the question of

whether a district court has jurisdiction under Rule of Criminal Procedure 35(c) to

correct a sentence if the court sets the sentence aside within seven days of orally

pronouncing it in open court but does not impose a new sentence until more than

seven days have passed. We answer that question “no.”

      Pursuant to a written agreement, Morrison pleaded guilty to the crime with

which he was charged. The plea agreement stated that Morrison understood he was

facing a maximum sentence of two years imprisonment, although it did not

guarantee him any sentence. The PSI recommended a sentencing range of 46 to 57

months because of a prior burglary conviction which neither Morrison nor the

government had recognized might serve as a predicate for an “aggravated” felony

finding that would enhance the maximum sentence from two years to twenty years.

      Morrison, of course, objected to that part of the PSI. The details of his

objections and the issues they raised about the prior burglary conviction and the

plea agreement are not important to our decision of the jurisdictional question

before us. Suffice it to say that at the initial sentencing the district court expressed

serious misgivings but nonetheless went below the PSI recommended guideline


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range of 46 to 57 months – the court said it was “going to deviate, in a sense, from

the Sentencing Guidelines because of the requirement that the Government be held

to specific performance.” The court orally sentenced Morrison to 24 months. That

sentence was within the maximum the plea agreement said that Morrison

understood he was facing. Those sentencing events, including the initial

sentencing, occurred on August 14, 1998.

      Soon thereafter the district court’s misgivings multiplied, and acting under

Rule 35(c) the court sua sponte issued an order vacating Morrison’s 24 month

sentence. The order vacating the initial sentence was signed on August 19, 1998,

which was within the seven-day period specified in the rule. The court then held

another sentence hearing, decided that the original sentence had been based upon

“mutual mistake,” and resentenced Morrison to 46 months imprisonment. That

last sentence hearing and the imposition of the new, longer sentence occurred on

August 27, 1998, which was thirteen days after the initial sentence was orally

imposed. No actual written sentence or judgment was entered in this case until

August 28, 1998.

      Rule 35(c) provides that: “The court, acting within 7 days after the

imposition of sentence, may correct a sentence that was imposed as a result of

arithmetical, technical, or other clear error.” Morrison argues that the district


                                           3
court’s initial sentence was not the result of “arithmetical, technical, or other clear

error” if it was error at all, and therefore the correction of it was outside the scope

of Rule 35(c). We are less sure of the correct resolution of that dispute than we are

about the seven-day issue, so we leave to the side matters involving the nature of

any error affecting the initial sentence. For present purposes, we will assume that

sentencing Morrison to less than 46 months the first time was technical or clear

error correctable under Rule 35(c) if the court had acted soon enough.

      Attempting to save the second and longer sentence, the government first

argues that Morrison waived the seven-day limitation issue by not raising it in the

district court. The problem with that argument is that lack of jurisdiction may be

raised at any time, see United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th

Cir. 1998), and the seven-day limitation contained in Rule 35(c) is a jurisdictional

restriction. United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235 (1979),

involved a prior version of Rule 35(b) which permitted the sentencing court to act

within 120 days in order to reduce a sentence on substantial assistance grounds.

The Supreme Court stated that the rule “authorizes district courts to reduce a

sentence within 120 days after it is imposed or after it has been affirmed on appeal.

The time period, however, is jurisdictional and may not be extended.” Id. at 189;

see also, United States v. Orozco, 160 F.3d 1309, 1313 (11th Cir. 1998)


                                           4
(recognizing that the one-year period in revised Rule 35(b) is a jurisdictional

deadline). Just as the time period specified in Rule 35(b) is jurisdictional, so also

is the time period specified in Rule 35(c). See United States v. Yost, 185 F.3d

1178, 1180 n. 3 (11th Cir. 1999)(“Rule 35(c) authority is jurisdictional”)(dicta);

United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2nd Cir. 1995)(collecting cases).

      The government’s next argument has more meat to it, but is still unavailing.

The government contends that “the imposition of sentence,” as that phrase is used

in the rule refers to the written imposition of sentence or entry of judgment, not to

the oral imposition of sentence. If the seven-day jurisdictional period for

correcting a sentence under Rule 35(c) does not begin to run until the sentence is

reduced to writing or entered as part of the judgment, then the sentence in this case

was corrected before it was ever “imposed” and, of course, before seven days had

run after it was imposed. On the other hand, if “the imposition of sentence” means

or includes the oral imposition of sentence at the sentence hearing, then the seven

days began to run on August 14 and ran out before Morrison was resentenced on

August 27.

      In Yost, 185 F.3d at 1180 n.3, we noted this issue without deciding it. In our

opinion in that case, we did tabulate the number of circuits on each side of this

issue, concluding that there was a four-to-one, or perhaps four-to-two, split in favor


                                          5
of the view that a sentence is imposed for purposes of Rule 35(c) when it is orally

pronounced by the district court. Id. We did not need to align ourselves with

either side of the issue in Yost, but the time for choosing a side has come.

      We choose the majority side of this issue, agreeing that the Rule 35(c)

seven-day window opens upon the oral imposition of sentence and closes seven

days thereafter. As the Second Circuit has explained in reaching this same

conclusion:

                     After the oral imposition of sentence, the court and
              counsel are in as good a position to notice any
              "arithmetical, technical, or other clear error" as they
              would be after formal entry of written judgment. In the
              event such an error is only recognized later it can be
              cured by appeal and remand. If the error is only in the
              later written judgment, purely clerical errors may be
              corrected by the district court pursuant to Rule 36, and it
              is always the oral sentence that controls, see [United
              States v. Werber, 51 F.3d 342 (2d Cir. 1995)] at 347. A
              contrary rule, interpreting the phrase to refer to the
              written judgment, would allow district courts to
              announce a sentence, delay the ministerial task of formal
              entry, have a change of heart, and alter the sentence--a
              sequence of events we believe to be beyond what the rule
              was meant to allow.

Abreu-Cabrera, 64 F.3d at 74 (2d Cir. 1995); accord, United States v. Gonzalez,

163 F.3d 255, 264 (5th Cir. 1998); United States v. Layman, 116 F.3d 105, 108

(4th Cir. 1997); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994);



                                           6
United States v. Navarro-Espinosa, 30 F.3d 1169, 1170 (9th Cir. 1994); but see

United States v. Clay, 37 F.3d 338, 340 (7th Cir. 1994); United States v. Morillo, 8

F.3d 864, 869 n.8 (1st Cir. 1993) (dicta).

      All we wish to add to what the Second Circuit said in Abreu-Cabrera is that

the Committee note explaining Rule 35(c) confirms the conclusion that the rule

was not meant to allow the kind of open-ended sentencing that would be permitted

if “the imposition of sentence” referred to the written judgment. That note says

the court’s authority to correct a sentence under subdivision (c) of Rule 35 “is

intended to be very narrow,” and the subdivision “is not intended to afford the

court the opportunity to reconsider the application or interpretation of the

sentencing guidelines or for the court simply to change its mind about the

appropriateness of the sentence.” Advisory Committee Note to Rule 35(c). The

note also explains that the Committee rejected a proposal to allow modification of

a sentence within 120 days based upon new factual information, because “[t]he

Committee believed that such a change would inject into Rule 35 a degree of post-

sentencing discretion which would raise doubts about the finality of determinate

sentencing that Congress attempted to resolve by eliminating former Rule 35(a).”

Id. So would an interpretation of “the imposition of sentence” which postponed

the running of the seven-day clock until the written judgment was entered in a


                                             7
case, an event that could be delayed for weeks or months after the sentence is

orally imposed at the sentence hearing.

      The seven-day period set out in Rule 35(c) begins to run when the sentence

in a case is orally imposed, and when seven days are up the court loses jurisdiction

to correct a sentence under that subdivision of the rule. It follows that the district

court in this case was without jurisdiction under Rule 35(c) to impose a new

sentence to correct one it had orally imposed thirteen days earlier. Without

imposition of a new and corrected sentence before the seven days were up, the

court’s order on the fifth day vacating the initial sentence withered and is of no

effect. Morrison is entitled to have his initial 24 month sentence reimposed.

      VACATED AND REMANDED FOR REIMPOSITION OF SENTENCE.




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