United States v. Deleo, Joseph. Appeal of Joseph Deleo, 644 F.2d 300 (3d Cir. 1981). · Go Syfert
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United States v. Deleo, Joseph. Appeal of Joseph Deleo, 644 F.2d 300 (3d Cir. 1981). Cases Citing This Book View Copy Cite
47 citation events (13 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Michael Norwood (ca3, 2022-09-08)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Michael Norwood
3rd Cir. · 2022 · confidence medium
In Davis, for example, we explained that a fine and restitution imposed for the same count of conviction were not interdependent where “[t]he fine did not have to be added to ensure that the sentence was legally correct.” 112 F.3d at 122 n.5. (citing United States v. DeLeo, 644 F.2d 300, 302 (3d Cir. 1981)).
cited Cited as authority (rule) United States v. James Minichella
3rd Cir. · 2022 · confidence medium
“The principle of finality underlies the rule that a court may not substantively alter a judgment.” United States v. DeLeo, 644 F.2d 300, 301 (3d Cir. 1981) (per curiam).
discussed Cited as authority (rule) Marmolejos v. United States
2d Cir. · 2015 · confidence medium
In sum, “Rule 36 applies only to clerical mistakes and errors in the record; it does not authorize substantive alteration of a final judgment.” United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981).
discussed Cited as authority (rule) United States v. Louis Agnes
3rd Cir. · 2012 · confidence medium
On March 16, 2010, the District Court denied Agnes’s motion, noting that “[t]he Bureau of Prisons has correctly calculated his sentence in this case in accordance with 18 U.S.C. § 3585 , and this court’s judgment order of July 26, 1995, as amended May 6, 1996.” Agnes timely appealed. 3 We agree with the Government that this challenge is not properly brought under Rule 36. 4 Generally, a court “may not substantively alter a [sentencing] judgment without specific authorization.” United States v. Bennett, 423 F.3d 271, 276-77 (3d Cir.2005) (quoting United States v. DeLeo, 644 F.2d 30…
cited Cited as authority (rule) United States v. Lena
3rd Cir. · 2007 · confidence medium
United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981).
discussed Cited as authority (rule) United States v. Bennett
3rd Cir. · 2005 · confidence medium
“The principle of finality underlies the rule that a court may not substantively alter a judgment without specific authorization.” United States v. DeLeo, 644 F.2d 300, 301 (3d Cir. 1981) (per curiam).
discussed Cited as authority (rule) United States v. Frank Wiggs Bennett
3rd Cir. · 2005 · confidence medium
“The principle of finality underlies the rule *277 that a court may not substantively alter a judgment without specific authorization.” United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981) (per curiam).
discussed Cited as authority (rule) United States v. Smith
W.D. Pa. · 2000 · confidence medium
United States v. Werber, 51 F.3d 342 (2d Cir.1995) (district court lacked jurisdiction under Rule 36 to modify a sentence to reflect its unexpressed intention at sentencing to depart in order to ensure defendants received credit for time spent imprisoned on state sentences); United States v. Guevremont, 829 F.2d 423, 426 (3d Cir.1987) (a Rule 36 error “must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature.”); United States v. DeLeo, 644 F.2d 300, 301-02 (3d Cir.1981) (“Rule 36 applies …
discussed Cited as authority (rule) United States v. Davis (2×) also: Cited "see"
3rd Cir. · 1997 · confidence medium
Davis relies upon United States v. DeLeo, 644 F.2d 300, 301 (3d Cir. 1981), where the defendant filed a motion seeking to correct the court's sentence pursuant to Fed.R.Cr.P. 35.
discussed Cited as authority (rule) United States v. Barry Davis, A/K/A \Mark Johnson\"" (2×) also: Cited "see"
3rd Cir. · 1997 · confidence medium
Davis relies upon United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981), where the defendant filed a motion seeking to correct the court's sentence pursuant to Fed.RXr.P. 35.
cited Cited as authority (rule) United States v. Jose Leonardo Contreras-Subias
9th Cir. · 1994 · confidence medium
United States v. De Leo, 644 F.2d 300, 302 (3d Cir.1981); United States v. Welty, 426 F.2d 615, 618 (3d Cir.1970).
discussed Cited as authority (rule) State v. Meier (2×) also: Cited "see"
N.D. · 1989 · confidence medium
E.g., United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981); People v. Garcia, 166 Cal.App.3d 1056 , 212 Cal.Rptr. 822, 828 (1985); State ex rel.
discussed Cited as authority (rule) United States v. Carl P. Fogel
D.C. Cir. · 1987 · signal: cf. · confidence medium
Cf. United States v. DeLeo, 644 F.2d 300, 302 (3d Cir.1981) (“fairness demands that the district court’s authority to ‘correct’ [under Rule 35] be limited to correction of the illegality”); Pugliese v. United States, 353 F.2d 514, 516 (1st Cir.1965) (“The illegality [under Rule 35] could not exceed what needs to be corrected.”).
examined Cited as authority (rule) James L. Fiore, Jr. v. United States (4×) also: Cited "see"
2d Cir. · 1982 · signal: cf. · confidence medium
Cf. United States v. DeLeo, 644 F.2d 300, 302 (3d Cir.1981) (sentencing court cannot impose fine as condition of probation after excess restitution revoked and period for sentencing has passed).
discussed Cited "see" People v. Bassford
Colo. Ct. App. · 2014 · signal: see · confidence high
See United States v. DeLeo, 644 F.2d 300, 302 (8d Cir. 1981); see also King, 98 F.2d at 296 (while consideration that "future prisoners who may be sentenced unlawfully should not be deterred from protest by fear of increased severity" has force, "as arguments for exercising judicial discretion in the prisoner's favor they must be addressed to the trial court, and as arguments for a rule of law in his favor they must be addressed to the Supreme Court or to Congress"). 11 35 And judicial economy is further implicated in that, where greater punishment is imposed, a defendant may institute further…
discussed Cited "see" People v. Bowerman (2×)
Colo. Ct. App. · 2010 · signal: see · confidence high
See United States v. Deleo, 644 F.2d 300, 302 (3d Cir.1981) (parties agreed that requiring payment of restitution of an amount greater than the actual loss concerned whether the sentence was imposed in an illegal manner); James v. United States, 70 Fed.Appx. 112, 113 (4th Cir.2003) (challenge to the amount and timing of restitution concerns whether the sentence was imposed in an ilegal manner); cf. Suttmiller, 240 P.3d at 508 (use of rental value as a way to measure vietim's loss did not result in an illegal sentence).
cited Cited "see" United States v. Henry
5th Cir. · 1983 · signal: see · confidence high
See DeLeo, supra. .
discussed Cited "see" United States v. Richard Bullock Henry, A/K/A Imari Abubakari Obadele, United States of America v. Wayne James, A/K/A Offoga Quaddus, and Thomas Norman, A/K/A Hekima Ana
5th Cir. · 1983 · signal: see · confidence high
See DeLeo, supra 22 A case that at first appears to reach a different result on facts very close to those of the present case is United States v. Busic, 639 F.2d 940 (3d Cir.1981), on remand from 446 U.S. 398 , 100 S.Ct. 1747 , 64 L.Ed.2d 381 (1980), cert. denied, 452 U.S. 918 , 101 S.Ct. 3055 , 69 L.Ed.2d 422 (1981).
cited Cited "see, e.g." McMillan v. United States
3rd Cir. · 2007 · signal: see, e.g. · confidence medium
See, e.g., United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981).
discussed Cited "see, e.g." United States v. John Scher Presents, Inc.
3rd Cir. · 1984 · signal: see also · confidence medium
See also United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981); United States v. Gering, 716 F.2d 615, 622-25 (9th Cir.1983); United States v. Johnson, 700 F.2d 699, 701 (11th Cir.1983); United States v. Orr, 691 F.2d 431, 432-34 (9th Cir.1982); United States v. Follette, 32 F.Supp. 953, 955-56 (E.D.Pa.1940) (Maris, Circuit Judge, sitting by designation).
discussed Cited "see, e.g." United States v. John Scher Presents, Inc.
3rd Cir. · 1984 · signal: see also · confidence medium
See also United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.1981); United States v. Gering, 716 F.2d 615, 622-25 (9th Cir.1983); United States v. Johnson, 700 F.2d 699, 701 (11th Cir.1983); United States v. Orr, 691 F.2d 431, 432-34 (9th Cir.1982); United States v. Follette, 32 F.Supp. 953, 955-56 (E.D.Pa.1940) (Maris, Circuit Judge, sitting by designation).
Retrieving the full opinion text from the archive…
UNITED STATES of America
v.
DeLEO, Joseph. Appeal of Joseph DeLEO
80-2540.
Court of Appeals for the Third Circuit.
Mar 27, 1981.
644 F.2d 300
Gilbert J. Scutti, (argued), Marroletti, Dickstein & Scutti, Philadelphia, Pa., for appellant., Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Robert E. Welsh, Jr. (argued), Asst. U. S. Atty., Philadelphia, Pa., for ap-pellee.
Aldisert, Higginbotham, Per Curiam, Stern.
Cited by 27 opinions  |  Published

OPINION OF THE COURT

PER CURIAM.

The question for decision is whether the district court erred when it “corrected” appellant’s sentence, substituting a fine of $5,000 for payment of restitution in the same amount. We conclude that the amendment was unauthorized, and therefore we will vacate the judgment and remand for further proceedings.

Appellant Joseph DeLeo pleaded guilty to five counts of a thirty-five count indictment, pursuant to a plea agreement presented to the district court under Fed.R. Crim.P. 11(e). Appellant pleaded guilty to counts charging unauthorized possession of food stamps (7 U.S.C. § 2024(b)) and forgery (18 U.S.C. § 495). On May 29, 1980, the court sentenced DeLeo to six months imprisonment and to probation for four and one-half years, on condition that he pay restitution in the amount of $5,000.

On August 25, 1980, DeLeo moved the district court pursuant to Fed.R.Crim.P. 35 to correct, reduce, or vacate his sentence. He did not contest the imprisonment or probation, nor did he challenge the court’s authority to require payment of restitution. He contended only that the restitutionary order was unauthorized because $5,000 exceeded the “actual damages or loss caused by the offense for which conviction was had.” 18 U.S.C. § 3651. The United States answered DeLeo’s motion by admitting every allegation and averring that the actual loss caused by the crimes for which DeLeo was convicted totalled $3,081. [1] It acknowledged that the sentence should be amended to order restitution in that amount. See United States v. Buechler, 557 F.2d 1002, 1007-08 (3d Cir. 1977). DeLeo thereafter filed a Supplemental Memorandum of Law challenging the government’s computations and suggesting that the United States “be required to prepare an accurate accounting of the actual amount lost in this case and by whom.”

By an order dated September 23, 1980, which purported to correct the judgment pursuant to Fed.R.Crim.P. 36, the district court amended DeLeo’s sentence by deleting the paragraph that ordered payment of $5,000 restitution and substituting a new paragraph imposing a fine in the same amount. This appeal followed.

The principle of finality underlies the rule that a court may not substantively alter a judgment without specific authorization. See, e. g., United States v. DiFrancesco, - U.S. -, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190, 57 L.Ed.2d 65 (1978). Neither Rule 36 nor Rule 35 of the Federal Rules of Criminal Procedure authorizes the court’s order, and we are unable to discover any other source of the necessary authority. Rule 36, on which the lower court relied, provides: “Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” The court did not correct a clerical mistake or an error in the record. The record demonstrates that the judgment of sentence signed by the trial judge accurately reflects the judgment he pronounced in open court. Compare United States v. Marquez, 506 F.2d 620 (2d Cir. 1974); Kennedy v. Reid, 249 F.2d 492 (D.C.Cir.1957). Rule 36 applies only to clerical mistakes and errors in the record; it does not authorize substantive alteration of a final judgment. See United States v. Marchese, 341 F.2d[*302] 782, 788 (9th Cir.), cert. denied, 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 84 (1965); 2 C. Wright, Federal Practice and Procedure § 611 (1969).

Rule 35, cited in DeLeo’s motion for correction of sentence, provides that “[t]he court may correct an illegal sentence at any time” and may reduce a sentence or “correct a sentence imposed in an illegal manner” within 120 days after it is imposed. Neither party suggests that the original sentence was illegal, but both agree that it was imposed in an illegal manner because it required payment of restitution in an amount greater than the actual loss. See Notes of the Advisory Committee on Rules, 18 U.S.C.A. following Fed.R.Crim.P. 35, page 344. When a defendant moves for correction of .sentence under Rule 35, fairness demands that the district court’s authority to “correct” be limited to correction of the illegality. Otherwise, a defendant may be deterred from calling the court’s attention to an error for fear of subjecting himself to greater punishment. [2] We hold, therefore, that the district court abused its discretion by imposing a fine on the defendant when the only issue before it was the proper amount of restitution. [3]

The judgment will be vacated and the case remanded for determination of the actual damages or loss caused by the offenses for which DeLeo was convicted, 18 U.S.C. § 3651, and entry of an appropriate order under Rule 35.

1

. Count 1 charged appellant with knowingly acquiring a total of $955.00 worth of food stamps in a manner not authorized by law; Count 2, $385.00; Count 3, $310.00. Count 34 charged appellant with forging endorsements on food stamp redemption certificates for the purpose of receiving $731.00 from the government; Count 35, $700.00. Thus, the total loss to the United States Department of Agriculture charged in the relevant counts of the indictment was $3,081.00.

2

. We note that the amounts charged in the relevant five counts of the indictment amounted to $3,081.00. See note 1, supra. We note further that appellant did not challenge the amount of restitution at sentencing. Had the issue been then raised, it is reasonable to expect that the district judge would have had the necessary information at the time sentence was imposed.

Unlike the facts in the present case where the amount of restitution ordered exceeded the totals contained in the indictment, it would appear that where the amount of restitution at sentencing is no greater than that set forth in the indictment, failure of a defendant to object at sentencing could be deemed as a waiver of objection to the amount of restitution.

3

. Appellant also argues that an increase in his sentence after he has begun to serve it violates the double jeopardy prohibition of the fifth amendment to the United States Constitution. It is not necessary to consider that argument in this case. We need not rely on constitutional doctrine to hold illegal an unauthorized order substantively altering a final judgment in a criminal case.