Jacob Herring v. United States
169 A.3d 354
| D.C. | 2017Background
- Jacob Herring was convicted of multiple offenses including two counts of possession of a firearm during a crime of violence (PFCV). At sentencing in 2011 Judge Keary imposed an aggregate 174-month term by running one 60‑month PFCV sentence concurrent and the other 60‑month PFCV sentence consecutive, plus a consecutive 48‑month obstruction term.
- This court affirmed the convictions but held the two PFCV counts merged and remanded with instructions to vacate one PFCV conviction; the trial court could choose which to vacate to effectuate its sentencing plan.
- The trial court’s January 2014 amended judgment vacated the wrong PFCV count and omitted concurrency/consecutiveness designations; the April 2014 amendment reinserted "concurrent" for Count Three but the face of the J&C still listed a total term of 174 months, creating an internal inconsistency (the listed component terms then totaled 114 months).
- In 2016 the court discovered the inconsistency, concluded it was a clerical error that had mistakenly preserved the concurrent PFCV instead of the consecutive one, and proposed to reinstate the consecutive PFCV count (Count Four) to restore the original 174‑month aggregate sentence.
- Herring objected, arguing Double Jeopardy barred increasing his effective sentence after he had begun serving the concurrent PFCV term; he also contended Rule 36 did not permit correction of a non‑clerical (substantive) change and that the judge could not rely on her recollection without a Downey-style hearing.
- The trial court held a hearing, explained its intent at the original sentencing, treated the April 2014 order as facially ambiguous and clerically erroneous, and issued a July 2016 amended J&C reinstating the consecutive PFCV sentence to preserve the original 174‑month total.
Issues
| Issue | Herring's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Double Jeopardy barred reinstating the consecutive PFCV count after the April 2014 J&C | April 2014 J&C was final; Herring had legitimate expectation of finality and had begun serving the concurrent PFCV sentence, so reinstatement impermissibly increased punishment | April 2014 J&C was facially ambiguous; no legitimate expectation of finality; reinstating consecutive count merely corrected the record to effectuate original sentence, not a second punishment | No Double Jeopardy violation; defendant lacked legitimate expectation of finality in the ambiguous April 2014 order and reinstatement did not impose multiple punishments |
| Whether the correction was authorized by Super. Ct. Crim. R. 36 (clerical error) | The record does not establish a mere clerical error; change was substantive and required more than Rule 36 | The internal inconsistency could only be resolved by correcting a clerical mistake; the court may consult the entire record to discern sentencing intent | Rule 36 authorized correction: the April 2014 J&C contained a clerical error subject to correction and the record supported restoring the original sentencing plan |
| Whether the sentencing judge impermissibly relied on her own recollection (Downey) and thus due process required a hearing before a different judge | Judge Keary relied on memory and should have been called as a witness before another judge per Downey | The record contained sufficient contemporaneous materials to discern intent; Downey did not require reassignment where recollection was unnecessary | Downey did not mandate a separate-judge hearing because ample record evidence supported correction; judge’s remarks were inferable from the record |
| Whether reinstatement subjected Herring to multiple punishments for the same offense under Lange/Bradley | Reinstatement after serving the concurrent term effectively punished him twice or extended punishment unlawfully | Lange/Bradley are limited; the constitutional concern is that total punishment exceed legislative authorization; reinstatement kept total within authorized limits | No multiple-punishment violation: reinstatement did not exceed legislatively authorized punishment and did not produce an unlawful additional punishment |
Key Cases Cited
- Jones v. Thomas, 491 U.S. 376 (Sup. Ct.) (clarifies Double Jeopardy interest is ensuring total punishment does not exceed legislative authorization)
- DiFrancesco v. United States, 449 U.S. 117 (Sup. Ct.) (defendant cannot expect finality when statutory appeals may alter sentence)
- Ex parte Lange, 85 U.S. 163 (U.S.) (historic rule barring additional punishment after full performance of one unauthorized component)
- In re Bradley, 318 U.S. 50 (U.S.) (Lange line establishing limits on correcting sentences that imposed unauthorized multiple punishments)
- United States v. Robinson, 388 A.2d 469 (D.C. Ct. App.) (distinguishable: judge intentionally entered sentence reduction, so later revocation impermissible)
- David v. United States, 579 A.2d 1172 (D.C. Ct. App.) (permitting resolving ambiguous sentence by reference to record and trial court intent)
- Bennett v. United States, 620 A.2d 1342 (D.C. Ct. App.) (Rule 36 correction allowed by comparing J&C to other record parts to identify clerical transposition)
- Downey v. United States, 91 F.2d 223 (D.C. Cir.) (trial judge should not act as sole witness to reconstruct prior oral pronouncement when record lacks materials; may require hearing before another judge)