                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
__________________________
                           )
UNITED STATES OF AMERICA, )
                           )
     v.                    )
                           )     Criminal Action No. 96-452 (RWR)
ANTOYNE P. WHITE,          )
                           )
     Defendant.            )
__________________________ )

                         MEMORANDUM ORDER

     In 1998, the defendant pled guilty to five charges,

including carrying a pistol without a license (“CPWL”).    Judge

Harold Greene sentenced the defendant to a term of forty years to

life, including twenty months to five years on the CPWL charge.

The court of appeals vacated the defendant’s conviction on the

CPWL charge on the ground that there was no jurisdiction over

that charge.   The case was reassigned to this Court, and in

January 2001, the defendant’s motion to withdraw his guilty plea

on the CPWL charge was granted, and that charge was dismissed for

lack of jurisdiction.   In that Order, the defendant’s Judgment

and Commitment Order was amended to delete the CPWL charge and to

reduce the defendant’s total sentence to eighteen and one-third

years to life.   The government has filed a motion to correct a

clerical error in the judgment under Federal Rule of Criminal

Procedure 36,1 arguing that the sentence should have been reduced


     1
       Rule 36 provides that “the court may at any time correct a
clerical error in a judgment, order, or other part of the
record[.]”
                                -2-

to thirty-eight and one-third years to life instead of eighteen

and one-third years to life.   The defendant filed an opposition,2

arguing that the error was arithmetical, not clerical in nature,

and that there is no authority for amending the judgment because

the time period for amending a judgment under Rule 35 has

passed.3   Because there was no jurisdiction to alter the

defendant’s sentence except as to the CPWL charge, the

defendant’s Judgment and Commitment Order will be amended to

comply with the court of appeals’ mandate.

     A district court is without authority to take any action

that is inconsistent with an appellate court’s mandate.     See City

of Cleveland, Ohio v. Fed. Power Comm’n, 561 F.2d 344, 346 (D.C.

Cir. 1977) (noting that the “decision of a federal appellate

court establishes the law binding further action in the

litigation by another body subject to its authority” and that the

“latter ‘is without power to do anything which is contrary to



     2
       The defendant has also filed a motion for leave to file a
surreply. The defendant has not identified any matter that he
was unable to contest in his opposition because the government
raised it for the first time in its reply. Cf. Ben-Kotel v.
Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (noting that
plaintiff could have moved for leave to file a surreply to
contest a matter raised for the first time in the defendant’s
reply memorandum). Therefore, the defendant’s motion for leave
to file a surreply will be denied.
     3
       Rule 35 provides authority for correcting substantive
errors in sentences: “[w]ithin 14 days after sentencing, the
court may correct a sentence that resulted from arithmetical,
technical, or other clear error.”
                                -3-

either the letter or spirit of the mandate’” (quoting Yablonski

v. United Mine Workers of Am., 454 F.2d 1036, 1038 (D.C. Cir.

1972))); Laffey v. Nw. Airlines, Inc., 642 F.2d 578, 584-85 (D.C.

Cir. 1980) (holding that district court “had no power to

reconsider issues laid to rest on an earlier appeal”).    Failure

to comply with a mandate is a jurisdictional error.   See United

States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007) (noting

that the court had described a mandate “as limiting the district

court’s ‘authority’ on remand, which is jurisdiction language”);

United States v. Rosa, 372 F. Supp. 1341, 1341 (S.D.N.Y. 1974)

(“No jurisdictional basis apparently exists for this Court to

alter or modify the mandate of the Court of Appeals.”).    The

Supreme Court has held that if a lower court “does not give full

effect to [a] mandate, its action may be controlled, either upon

a new appeal . . . or by a writ of mandamus to execute the

mandate[.]”   In re Sanford Fork & Tool Co., 160 U.S. 247, 255

(1895).   However, a district court also retains jurisdiction to

enforce an appellate court’s mandate.   See Int’l Ladies’ Garment

Workers’ Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984)

(noting that “authority is retained by the District Court” to

enforce the circuit’s mandate); Dilley v. Alexander, 627 F.2d

407, 412 n.7 (D.C. Cir. 1980) (describing the district court’s

role in implementing a mandate as “a shared responsibility” with

the court of appeals).
                                -4-

     The court of appeals’ mandate left untouched all of the

defendant’s sentence except that imposed on the CPWL charge.    On

remand, there was no authority to lower the sentences on the

other four offenses.   Rather, the mandate authorized vacating the

CPWL sentence, as the court of appeals explicitly directed, and

dismissing the CPWL charge, as was implicit in the remand.     All

that the January 2001 Order needed to say, then, was that the

sentence on Count 1 as pronounced on page 2 of the Judgment and

Commitment Order was vacated, and Count 1 of the Superseding

Information filed on June 25, 1998 was dismissed.    It was

unnecessary for the Order to recalculate the resulting aggregate

sentence, as it tried to do.   It is plain that in trying to state

what the resulting aggregate sentence was, the Order either

subtracted wrongly or incorrectly substituted a “1" before the

“8" and carried that over erroneously into the 18 1/3 year

sentence as articulated in words.     Although the government waited

well beyond Rule 35's fourteen-day window to seek to correct the

potentially arithmetic error, Rule 35 does not stand in the way

of correcting a sentence which there was no jurisdiction to

impose in the first place.   The sentence that was announced

orally by Judge Greene in the defendant’s presence, less the

portion the court of appeals found illegal, is what should

control.   Accordingly, it is hereby
                               -5-

     ORDERED sua sponte that the defendant’s Judgment and

Commitment Order be, and hereby is, amended to reflect a total

sentence of thirty-eight and one-third (38 1/3) years to life.

It is further

     ORDERED that the government’s motion [72] to correct a

clerical error be, and hereby is, DENIED as moot.   It is further

     ORDERED that the defendant’s motion for leave to file a

surreply be, and hereby is, DENIED.

     SIGNED this 22nd day of November, 2010.

                             __________/s/_______________
                             RICHARD W. ROBERTS
                             United States District Judge
