                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-4330


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

CHARLES BENTIL,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:02-cr-00499-JCC-1)


Submitted:   December 12, 2016              Decided:   February 7, 2017


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Angela
Fiorentino-Rios, Special Assistant United States Attorney,
Christopher   Catizone,   Assistant  United   States   Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Charles Bentil appeals from the 10-month sentence imposed

by   the    district          court       at   a    resentencing       hearing    after   the

revocation of his supervised release.                           At Bentil’s revocation

hearing, the district court twice orally pronounced a sentence

of 10 days’ imprisonment, which was to run consecutive to any

state court sentence received by Bentil for the criminal conduct

underlying           his   revocation.             The     district    court    subsequently

entered         a    written     judgment          reflecting    the    10-day    sentence.

Fourteen days later, the district court sua sponte convened a

resentencing hearing and informed the parties that it had made a

mistake and had intended to impose a sentence of 10 months’

imprisonment, not 10 days.                     The district court stated that this

error was obvious from the record of the revocation hearing and

that      the       imposition       of   a    10-day       sentence    would    be   plainly

unreasonable and constitute reversible error.                           Finding the error

to   be    clear       from    the    record,        the    district    court    resentenced

Bentil to 10 months’ imprisonment under Fed. R. Crim. P. 35(a).

Bentil noted a timely appeal, challenging the district court’s

authority to resentence him.                       For the reasons stated below, we

vacate the amended judgment order and remand with instructions

that the district court reinstate the 10-day sentence imposed at

Bentil’s revocation hearing.



                                                    2
       A district court “may not modify a term of imprisonment

once it has been imposed unless the Bureau of Prisons moves for

a   reduction,     the    Sentencing         Commission       amends      the   applicable

Guidelines       range,    or    another       statute        or   Rule    35   expressly

permits the court to do so.”                 United States v. Goodwyn, 596 F.3d

233, 235 (4th Cir. 2010) (internal quotation marks omitted).

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

sentence that resulted from arithmetical, technical, or other

clear error” within 14 days of sentencing.                             “[T]he scope of

clear error correctable under Rule 35(a) is extremely narrow,”

which comports with Congress’ intent “to promote openness and

finality in sentencing.”               United States v. Fields, 552 F.3d 401,

404-05    (4th     Cir.    2009)       (internal       quotation       marks    omitted).

“Although courts take different approaches to Rule 35(a), all

essentially agree that clear error under the Rule requires some

reversible       error    at     the    initial        sentencing.”         Id.   at   404

(internal quotation marks omitted).                     In other words, Rule 35(a)

“extend[s] only to those cases in which an obvious error or

mistake   has     occurred      in     the    sentence,       that   is,    errors   which

would almost certainly result in a remand of the case to the

trial court.”       United States v. Fraley, 988 F.2d 4, 7 (4th Cir.

1993) (quoting Fed. R. Crim. P. 35 advisory committee’s note to

1991   amendment).          We       review       de   novo    the   district     court’s



                                              3
exercise of jurisdiction under Rule 35(a).                      See United States v.

Poole, 531 F.3d 263, 270 (4th Cir. 2008).

       On appeal, Bentil argues that the district court did not

have jurisdiction under Rule 35(a) to alter the 10-day sentence

initially imposed because the record does not evince that the

court committed “clear error” when imposing sentence at Bentil’s

revocation hearing.               In response, the Government argues that

this       court    would     have    remanded       for   resentencing     because   the

10-day sentence is procedurally unreasonable, and therefore, the

district court properly corrected the “clear error” under Rule

35(a). 1     We agree with Bentil.

       In order for the district court to exercise jurisdiction

under Rule 35(a), it must have been “almost certain” that the

10-day sentence would have been reversed on appeal.                         See Fraley,

988    F.2d        at    7.      However,       “[a]    district    court    has     broad

discretion          when      imposing      a       sentence   upon   revocation       of

supervised release,” United States v. Webb, 738 F.3d 638, 640

(4th Cir. 2013), and thus, in examining a revocation sentence,

this       court        “takes    a    more      deferential       appellate       posture

concerning issues of fact and the exercise of discretion than



       1
       The Government also argues that the district court’s error
was  arithmetical   or   technical.     We  find   this  argument
unpersuasive. Moreover, the district court solely relied on the
“clear error” language of Rule 35(a) to resentence Bentil.



                                                4
reasonableness            review       for        guidelines          sentences,”         United

States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal

quotation marks omitted).                 “We will affirm a revocation sentence

if    it    is    within       the   statutory         maximum        and    is    not   plainly

unreasonable.”            Webb, 738 F.3d at 640 (internal quotation marks

omitted).         In conducting reasonableness review in the supervised

release revocation context, we “follow generally the procedural

and        substantive           considerations”                used          in       reviewing

post-conviction sentences.                   United States v. Crudup, 461 F.3d

433, 438 (4th Cir. 2006).

       A   revocation          sentence      is   procedurally             reasonable    if     the

district          court     adequately            explains           the     sentence         after

considering         the    policy      statements          in    Chapter       Seven     of    the

Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a)

(2012)      factors.           See    18     U.S.C.        §    3583(e)       (2012);     United

States v. Thompson, 595 F.3d 544, 546-47 (4th Cir. 2010).                                       “A

court      need    not    be    as    detailed        or     specific       when    imposing     a

revocation          sentence         as      it       must      be     when        imposing      a

post-conviction sentence, but it still must provide a statement

of reasons for the sentence imposed.”                          Thompson, 595 F.3d at 547

(internal quotation marks omitted).

       We first conclude that the intent of the district court to

impose a 10-month consecutive sentence is not sufficiently clear

from the record of the revocation hearing, and as such, the

                                                  5
district    court’s      imposition      of       a    10-day     sentence   at     the

revocation hearing was not the type of obvious error that we

have suggested is correctable under Rule 35(a).                     See Fields, 552

F.3d at 405 (suggesting district court could correct obvious

mistake where intent is clear from the record).                        Although the

district court noted at the revocation hearing that Bentil had

repeatedly violated the conditions of his supervised release,

the   district     court’s     summary       of       those   violations     and    the

punishments imposed indicate that the violations did not involve

shockingly abhorrent behavior.               Furthermore, while the district

court did find that Bentil’s original offense was “very serious”

and that he had a significant criminal history, the court also

seemingly   took    into     consideration        several       mitigating   factors,

including Bentil’s steady employment, his clean drug screens,

his   completion    of   a   substance       abuse      program,    his   payment    of

child support for his daughter, and his substance abuse problem,

which began at an early age.             The court also acknowledged that

Bentil would likely face a sentence of imprisonment in state

court.      Consequently,       the   district           court’s    intent    at    the

revocation hearing to sentence Bentil to 10 months rather 10

days is ambiguous at best, and thus, any disconnect between the

10-day sentence and the court’s intent at the revocation hearing

cannot support resentencing under Rule 35(a).                       See Fields, 552



                                         6
F.3d at 405 (refusing “to search for an intent that was not

obvious to anyone” at initial sentencing hearing).

     In addition, we find that the initial sentence of 10 days

imposed by the district court was not “clear error” within the

meaning of Rule 35(a) because we are not convinced that the

sentence     would    have        “almost    certain[ly]”        been    reversed    for

procedural unreasonableness on appeal.                    See Fraley, 988 F.2d at

7.   At the revocation hearing, the district court took into

account     the    Guidelines       range    and       discussed   several     of    the

§ 3553(a) factors.          As discussed above, the district court also

considered the aggravating and mitigating factors in this case.

The district court’s discussion of these factors could support a

10-day    sentence        given     the   deference       afforded      to   revocation

sentences by this court.             Accordingly, we are not convinced that

we would find the 10-day sentence to be plainly procedurally

unreasonable on appeal.

     Even     if     we     might     find       the    10-day     sentence     to    be

procedurally unreasonable, because the Government did not offer

any argument for a within-policy-statement range sentence at the

revocation hearing and did not object to the court’s explanation

of the 10-day sentence, plain error review would apply to any

appeal of the sentence for procedural unreasonableness.                              See

Webb, 738 F.3d at 640; United States v. Houston, 529 F.3d 743,

749-50 (6th Cir. 2008) (taking into account that plain error

                                             7
review would have applied to appeal of sentence in clear error

analysis       under   Rule     35(a)).         To    establish    plain      error,      the

Government would have to demonstrate that (1) the district court

committed      an    error;     (2)    the    error     was   plain;    (3)    the    error

affected the Government’s substantial rights; and (4) the error

“seriously          affect[s]     the        fairness,        integrity       or     public

reputation of judicial proceedings.”                     Puckett v. United States,

556 U.S. 129, 135 (2009) (internal quotation marks omitted); see

United States v. Blatstein, 482 F.3d 725, 730, 733 (4th Cir.

2007) (“[W]e have recognized that the substantial rights of the

Government are . . . entitled to protection from plain error.”).

      Under      plain   error        review,     the    Government     would      not    be

certain to prevail on appeal.                 For the reasons explained above,

the Government cannot point to any error that is plain from the

record    of    the    revocation       hearing.         Moreover,      the   Government

would be hard-pressed to argue that its substantial rights were

affected because the total state and federal sentence ultimately

imposed was greater than the sentence proposed by the Government

at   Bentil’s       revocation    hearing. 2          Finally,    any     error      by   the


      2Although the hearings before the district court occurred
prior to the imposition of Bentil’s state sentence, we note that
Bentil was ultimately sentenced to a term of imprisonment
exceeding one year, and therefore, the 10-day consecutive
sentence is longer than the 12-month concurrent sentence
recommended by the Government at the revocation hearing.     See
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.
(Continued)
                                              8
district court in imposing a 10-day sentence does not “seriously

affect the fairness, integrity or public reputation of judicial

proceedings.”      Puckett, 556 U.S. at 135 (alteration and internal

quotation   marks    omitted).      To       the   contrary,     we   believe     that

permitting the district court to resentence Bentil after clearly

announcing the 10-day sentence and entering the written judgment

would be more detrimental to the fairness and integrity of the

proceedings than allowing the 10-day sentence to stand.

     Accordingly,     we   vacate     the      amended     judgment      order    and

remand with instructions that the district court reinstate the

10-day   sentence    imposed   at   Bentil’s        revocation        hearing.     We

dispense    with    oral   argument      because         the    facts    and     legal

contentions   are    adequately     presented       in    the   materials      before

this court and argument would not aid the decisional process.



                                                           VACATED AND REMANDED




1989) (recognizing that we may take judicial notice of facts
outside of record on appeal in interest of justice).



                                         9
