United States v. Polanco , 201 F. App'x 898 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-26-2006
USA v. Polanco
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2532
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Recommended Citation
"USA v. Polanco" (2006). 2006 Decisions. Paper 291.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-2532
________________
UNITED STATES OF AMERICA
v.
AQUILE POLANCO,
a/k/a WILLIAM
a/k/a CHAMACO
Aquile Polanco,
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 01-cr-00031)
District Judge: Honorable Paul S. Diamond
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 25, 2006
Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES.
(Filed October 26, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Aquile Polanco appeals the District Court’s denial of his motion to correct a
clerical error under Fed. R. Crim. P. 36. For the following reasons we will affirm.
In 2001 Polanco pled guilty to two drug offenses, for which he was sentenced to,
inter alia, 124 months’ imprisonment and 20 years’ supervised release. At sentencing the
court initially stated that “a term of supervised release in this kind of activity should be 20
years,” tr. at 17, but went on to say that “[u]pon release from imprisonment, the defendant
shall be placed on supervised release for a term of five years.” Tr. at 19. The court then
corrected itself, saying: “Now, I just want to be sure that the supervised release term was
for 20 years. And, I want to be sure that that’s the sentence that I have imposed in this
case.” Tr. at 21. Accordingly, the judgment and commitment order reflect a term of 20
years’ supervised release. This Court affirmed Polanco’s sentence.
Polanco then unsuccessfully sought collateral relief via 28 U.S.C. § 2255. While
his request for a certificate of appealability was pending in this Court, he filed a motion in
the District Court to correct a clerical error via Rule 36. He argues that the judgment and
commitment order increased the term of supervised release from five to 20 years and that
the District Court lacked jurisdiction to do so because more than seven days had passed
since it imposed sentence. The District Court denied the motion. This appeal followed.1
1
We have jurisdiction under 28 U.S.C. § 1291. Evidently we have yet to articulate the
standard of review for the denial of a Rule 36 motion. Although there is disagreement
among the courts of appeal (see, e.g., United States v. Niemiec, 689 F.2d 688 (7th Cir.
1982) (abuse of discretion); United States v. Dickie, 752 F.2d 1398 (9th Cir. 1985)
(clearly erroneous)), we need not resolve that issue here because under any available
standard we would affirm.
2
Polanco focuses on the portion of the sentencing transcript where the District
Court appeared to impose five years of supervised release, conveniently ignoring the
passages flanking it where the court made it clear that Polanco should receive 20 years’
supervised release. It is plain that the court meant to impose 20 years’ supervised release
rather than five and, thus, that the judgment and commitment order contains no clerical
error in that regard. Accordingly, we will affirm the order of the District Court.
3