April 4, 2017
from the Superior Court of the District of Columbia
(CF3-12811-09)(Hon. Ann O'Regan Keary, Trial Judge)
Mikel-Meredith Weidman, Public Defender Service, with whom
Samia Fam and Jaclyn Frankfurt, Public Defender Service, were
on the brief, for appellant.
P. Saybolt, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman, Suzanne Grealy Curt, and Bernard J. Delia, Assistant
United States Attorneys, were on the brief, for appellee.
Glickman and Fisher, Associate Judges, and Reid, Senior
Fisher, Associate Judge.
otherwise affirming appellant Jacob Herring's convictions
on direct appeal, we remanded with instructions to merge his
two convictions for possession of a firearm during a crime of
violence ("PFCV"). On remand, the trial court
amended the judgment and commitment order by removing the
consecutive PFCV count, but it retained a total sentence
consistent with vacating the concurrent count. Upon
discovering the mistake, the court reinstated the consecutive
count, confirming that it had not intended to reduce
appellant's total sentence. The principal issue before us
now is whether the Double Jeopardy Clause precluded the court
from correcting its error. We conclude that there is no
double jeopardy bar and affirm.
jury trial, Mr. Herring was convicted of several offenses
related to a shooting, including two counts of PFCV-Counts
Three and Four of the indictment. On January 18, 2011, after
carefully explaining her reasons for choosing this
punishment, Judge Keary sentenced Mr. Herring to imprisonment
for "a total of 174 months, or 14 and a half
years." She first imposed concurrent terms of sixty-six
months for two counts of assault with a dangerous weapon
("ADW")-one count for each victim-then sentences of
sixty months' incarceration on each of the PFCV counts.
One PFCV sentence would be served concurrently with the
sentences for ADW, but the other PFCV sentence would run
consecutively. The court also imposed a consecutive sentence
of forty-eight months for obstruction of justice.
judgment and commitment order accurately recorded Judge
Keary's oral pronouncement, committing Mr. Herring
"to the custody of the Attorney General to be
incarcerated for a total term of 174 months." It
reflected sentences of "60 month(s) incarceration,
concurrent, " on Count Three and "60 month(s)
incarceration, consecutive, " on Count Four. The various
concurrent and consecutive periods of incarceration totaled
174 months. Ryshawn Jackson, appellant Herring's
codefendant, was sentenced to 198 months in prison.
defendants appealed their convictions to this court. In an
unpublished memorandum opinion and judgment issued in
November 2013, we found no merit to their substantive
complaints, but agreed that the PFCV convictions merged.
Jackson & Herring v. United States, Nos.
11-CF-105 & 11-CF-507, Mem. Op. & J. at 2 (D.C. Nov.
25, 2013). Thus, we remanded the case with instructions
"to vacate one of the PFCV convictions for each
appellant." Id. at 3.
Keary issued an amended judgment and commitment order for Mr.
Herring in January 2014. This order removed Count Four-the
PFCV sentence which had been designated consecutive in the
January 2011 J&C-from the list of Mr. Herring's
convictions. However, with respect to several counts,
including Count Three-the PFCV sentence that survived, it
neglected to specify whether the sentences were consecutive
or concurrent. The January 2014 J&C still committed Mr.
Herring "to the custody of the Attorney General to be
incarcerated for a total term of 174 months."
District law presumes that sentences run consecutively unless
the court expressly indicates otherwise, see D.C.
Code § 23-112 (2012 Repl.), Mr. Herring filed a motion
asking the court to reinsert "concurrent" as it had
appeared on the January 2011 J&C order. The government
did not oppose Mr. Herring's motion, and the court
obliged. In April 2014 the court issued another amended
judgment and commitment order which specified a sentence of
"60 month(s) incarceration, concurrent" on Count
Three. Like every other judgment and commitment order issued
in this case, it indicated that Mr. Herring was "to be
incarcerated for a total term of 174 months." It appears
that neither Mr. Herring nor the government brought to the
court's attention the inconsistency on the face of the
order: when aggregated, the terms of incarceration for the
various counts now totaled only 114 months.
March 16, 2016-nearly two years after the court's most
recent amendment of the judgment and commitment order-Judge
Keary's law clerk sent a letter notifying Mr.
Herring's counsel of "certain clerical errors in Mr.
Herring's April 22, 2014 amended Judgment and Commitment
Order." The letter stated that Judge Keary wished to
correct four errors. Among them,
[t]he amended Judgment and Commitment Order vacated the wrong
[PFCV] count (count 4 was vacated, instead of count 3[).]
Consistent with Judge Keary's original sentencing intent,
the PFCV sentence was to run consecutive to the Assault with
a Dangerous Weapon ("ADW") count. Thus, Judge Keary
proposes to correct this error in the amended Judgment and
Commitment Order by vacating the Count 3 sentence and
reinstating Count 4, the consecutive sentence. This does not
change the defendant's original sentence in any way.
letter cited Criminal Rule 36 as authority for correcting
this inadvertent error.
Herring objected to this change, contending that double
jeopardy principles prohibited reinstatement of Count Four
because he had already begun serving his sentence on Count
Three. He also argued that, in any event, Rule 36 did not
authorize the court to make this change, which he asserted
was substantive, not clerical. Finally, citing Downey v.
United States, 91 F.2d 223');">91 F.2d 223 (D.C. Cir. 1937), Mr. Herring
maintained that he was entitled to a hearing before a
different judge at which Judge Keary could be called as a
Keary held a hearing on the issues, during which she
I in too hasty a review of the [J&C order], . . . failed
to notice that the clerk had retained the concurrent PFCV
count, Count Three, and had removed the Count Four PFCV
sentence, which was imposed consecutively, thus altering the
original sentence and reducing it by five years. Of course,
the aggregate total sentence shown on the J&C was still
listed as the same, 174 months.
concluded that "[r]einstatement of the correct count,
the consecutive count, Count Four, falls within the
Court's inherent power to correct its record under Rule
36" and that "corrections [were] needed . . . to
resolve the patent inconsistency on the face of the J&C .
. . and . . . to maintain the Court's original sentencing
intent back at the time of the sentencing in 2011."
Keary also commented that there was "no reason for the
Court to reconstruct its memory" in an on-the-record
hearing before a different judge because her January 18,
2011, oral pronouncement unambiguously revealed her intent to
sentence Mr. Herring to 174 months of incarceration. She
explained that her "continuing intent at the time of the
2014 judgment and commitment order was not to reduce his
sentence, but that he serve the consecutive PFCV sentence
that I had originally imposed and that's reflected as
well by the lack of change in the total amount of . . .
prison time, the 174 months, which has remained the same
throughout the period of time despite multiple amendments to
the judgment and commitment order."
Judge Keary did not view the alteration to the judgment and
commitment order as presenting a double jeopardy issue:
The defendant was tried and convicted by the jury of these
offenses that the Court sentenced him to. I am not by my
action today exposing him to a new risk of punishment for the
same offense, I'm merely correcting the error made by my
oversight in the amendment of the judgment and commitment
order after the Court of appeals found that those two counts
merged. The court's error, which I acknowledge, does not
entitle Mr. Herring to a windfall of a five year reduction of
held that Mr. Herring "has had no legitimate expectation
of finality" in the April 2014 J&C order, which
"was ambiguous on its face." "Given the fact
that the judgment and commitment order continued to list 174
months, it's difficult to see how he can assert that he
legitimately thought his sentence was 60 months less than
that." Judge Keary also noted that the usual practice of
courts-and hers-is to preserve the "consecutive sentence
structure" originally imposed. She would not have
reduced Mr. Herring's sentence by five years without
giving notice to the parties and without explaining the
7, 2016, the court issued a new amended judgment and
commitment order which reinstated Count Four-the consecutive
PFCV sentence-and committed Mr. Herring to a total term of
incarceration of 174 months. As had been the case in January
2011, the ...