United States v. Reshard , 211 F. App'x 628 ( 2006 )

MEMORANDUM^**

John Wesley Reshard appeals from the sentence imposed following his guilty plea conviction for conspiracy, possession of fifteen or more unauthorized access devices, and possession of device-making equipment, all in violation of 18 U.S.C. § 1029(a)(3), (a)(4), and (b)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Reshard contests the district court’s entry of an amended judgment requiring him to pay $141,276.60 in restitution. Reshard asserts that, at sentencing and in the original judgment, the district court imposed a requirement that he pay $140,276.60, an amount different than the sum required by the amended judgment.

He notes that in United States v. Allen, 157 F.3d 661, 668 (9th Cir.1998), this court held that “where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment, this Court has uniformly held that the oral pronouncement, as correctly reported, must control.” He asserts that the district court’s oral pronouncement at sentencing was controlling over the district court’s subsequent amendment to the written judgment. We disagree.

Allen only applies in situations in which an orally-pronounced sentence is unambiguous. Here, both at sentencing and in its original judgment, the district court’s pronouncements were ambiguous because the district court required that Reshard was required to pay $140,276.60 in restitution and that “the amount of restitution shall be paid as set forth on a list attached to this judgment” (emphasis added). The district court later determined, however, that the list amount was $141,276.60, not $140,276.60, as originally assumed.

Because the district court specifically stated at sentencing that it intended that the restitution award reflect the amount specified on the fist, the district court did not err in subsequently correcting the judgment to reflect this intent. See Fed. R.Crim.P. 35(a); see also Fenner v. United States Parole Comm’n, 251 F.3d 782, 786 (9th Cir.2001) (“[T]o the extent that there is an ambiguity in the sentence, we properly may consider the sentencing judge’s subjective intent.”).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.