MEMORANDUM OPINION AND ORDER
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
This is
a White House fence-jumper case. But the defendant, Samira
Jabr, never gained entry to the White House or its
surrounding grounds on April 20, 2018. Instead, she was
arrested on the steps of the U.S. Treasury Building. Within
days of Ms. Jabr's arrest on the Treasury grounds, the
United States filed a one-count information charging her with
the misdemeanor of “knowingly enter[ing] and
remain[ing] in a restricted building and grounds, that is,
the White House Complex and United States Department of
Treasury Building and Grounds, without lawful authority to do
so, ” in violation of 18 U.S.C. § 1752(a)(1).
See Information [Dkt. No. 4]. Ms. Jabr subsequently
waived her right to a jury trial and requested a non-jury
trial. See Waiver of Trial by Jury and Request for
Nonjury Trial [Dkt. No. 17].
Trial
before the Court began on August 14, 2018. The government put
on its case, calling four witnesses and submitting thirteen
exhibits, including seven different segments of security
camera footage [Gov. Ex. 1] and two excerpts from Ms.
Jabr's post-arrest interview with two United States
Secret Service agents [Gov. Ex. 2]. At the close of the
government's case, the defendant moved for judgment of
acquittal. See Mot. for Judgment of Acquittal [Dkt.
No. 23]. The Court heard argument on August 15, 2018,
accepted supplemental briefs from the parties, and then heard
further argument on September 13, 2018.
By
Opinion and Order of May 16, 2019, the Court granted Ms.
Jabr's motion for judgment of acquittal as to the
substantive charge of entering or remaining in a restricted
building or grounds, in violation of 18 U.S.C. §
1752(a)(1), but denied her motion with respect to the offense
of attempting to enter or remain in a restricted building or
grounds. See United States v. Jabr, Criminal No.
18-0105, Opinion (May 16, 2019) [Dkt. No. 31] at 23, 35; May
16, 2019 Order [Dkt. No. 32]. It then found her guilty of the
misdemeanor of attempting to violate 18 U.S.C. §
1752(a)(1). United States v. Jabr, Criminal No.
18-0105, Opinion (May 16, 2019) at 35-36. Sentencing was
scheduled for July 24, 2019. Ms. Jabr, who lives in
California, formally waived her right to be present in person
for the sentencing, see Notice of Consent [Dkt. No.
33], and the Court granted her request - over the objection
of the government - to dispense with a presentence
investigation report. See June 19, 2019 Order [Dkt.
No. 39]. Subsequent events have demonstrated that not
requiring a formal presentence investigation report was a
mistake.
At the
sentencing hearing on July 24, 2019 - with the defendant
appearing by telephone - the Court indicated that it had
carefully reviewed the sentencing memoranda filed by the
government and by the defendant. The Court heard from counsel
for the parties and from the Probation Officer, as well as
from Ms. Jabr and her mother, and it reviewed the exhibits
submitted by the government. The Court concluded that
Sentencing Guideline 2B2.3, the guideline for trespassing,
governs a violation of 18 U.S.C. § 1752(a)(1). It found
the base offense level to be four and added four offense
levels under Sections 2B2.3(b)(1)(B) and 2X1.1 for attempting
to trespass on the White House grounds, for a total offense
level of 8. See Transcript of Sentencing Hearing on
July 24, 2019 (“Tr.”) at 81:17-22.[1] It rejected
defense counsel's arguments for downward departures under
Sections 5H1.3 and 5K2.13 of the Sentencing Guidelines.
See Tr. at 81:23-82:5. On the basis of Ms.
Jabr's three prior misdemeanor convictions, it found that
Ms. Jabr had three criminal history points and therefore was
in Criminal History Category II. With an Offense Level of 8
and a Criminal History Category of II, the Court found that
Ms. Jabr's Guidelines sentencing range was four to ten
months. See Tr. at 79:16-22; 81:17-22. The Court
concluded, however, that it was appropriate to vary downward
from the Guidelines sentencing range given the nature of the
offense, Ms. Jabr's background, and her mental health
issues. See Tr. at 73:1-75:4; 79:4-81:16; 82:2-5. It
sentenced her to time served, which was approximately seven
days. See Tr. at 82:9-19.
The
matters now at issue before the Court arise with respect to
three aspects of the sentence the Court imposed: restitution,
and two of the conditions of supervised release. In its
sentencing memorandum, the government had requested that the
Court order Ms. Jabr to pay $480 in restitution to a person
whose purse Ms. Jabr had stolen in Nevada at the beginning of
her journey to Washington, D.C. to commit the offense of
which she was convicted here. See Gov't
Sentencing Mem. [Dkt. No. 40] and Reply [Dkt. No. 42]. The
government argued at length at the sentencing hearing about
the purse snatching and presented a great deal of evidence,
including a video of Ms. Jabr snatching a woman's purse
at a casino in Nevada as she began her journey to Washington,
D.C. See Tr. at 5:5-10:11. The government argued
that restitution was appropriate because the purse snatching
was relevant conduct under Section 1B1.3 of the Sentencing
Guidelines. See Tr. 52:22-53:20. The Probation
Office concurred with the government's reading of the
Guidelines and thought restitution could be ordered based on
the facts as it understood them. See Tr. at
62:25-64:4. While the Court expressed some skepticism about
the restitution argument, see Tr. at 39:21-40:19;
55:20-56:9, it ultimately agreed with the government and the
Probation Office and imposed restitution in the amount of
$480 at the conclusion of the sentencing hearing.
See Tr. at 82:6-8; 83:13; 85:2-19.
In
addition, the Court imposed two conditions of supervised
release at the request of the government and at the
suggestion of the Probation Office in the Northern District
of California, the office charged with supervising Ms. Jabr
during her period of supervised release. See Tr. at
91:9-96:6. See also Gov't Sentencing Mem. [Dkt.
No. 40] at 8; Tr. at 65:1-66:3 (Probation Officer explaining
the California Probation Office's supervision request).
First, the Court required as a condition of supervised
release that the defendant submit her “person,
residence, office, vehicle or any other property under [her]
control to a search . . . by the United States Probation
Office . . . with or without suspicion.” Tr. at
84:12-17. The Court also ordered as a condition of supervised
release that the defendant “submit to a protective
intelligence interview with the United States Secret Service
regarding the degree of risk [she] may pose to persons or
facilities under Secret Service protection, and cooperate
fully with any inquires by the United States Secret Service
pursuant to its responsibilities under 18 U.S.C. §
3056.” Tr. at 84:21-85:1. The defendant, through
counsel, objected strenuously to both of these conditions
during the sentencing hearing on July 24, 2019. See
Tr. at 90:24-91:8.
On July
29, 2019, the defendant moved to stay the payment of
restitution. See Def.'s Mot. to Stay Payment of
Restitution [Dkt. No. 47]. On August 13, 2019, the government
filed a response to the motion, in which it stated that it
had no objection to the motion to stay payment of
restitution. Gov't Resp. to Mot. to Stay Payment of
Restitution [Dkt. No. 53]. Despite its vigorous argument in
support of restitution at the sentencing hearing and in its
sentencing memorandum, in its response the government now
said it “does not object to removing the restitution
requirement from the judgment” because “[c]ounsel
for the United States has consulted with the Appellate
Division of [its] office, which determined that it would not
be able to defend the restitution order on appeal.”
See id. By contrast, the government vigorously
continued to support both the search condition and the
protective intelligence interview condition in a supplemental
sentencing memorandum filed on the same day. See
Gov't Resp. to Def.'s Suppl. Sentencing Mem. [Dkt.
No. 52]. While the supplemental briefing requested by the
Court was ongoing, the Court refrained from entering a final
judgment in this case.
In a
Memorandum Opinion and Order dated September 9, 2019, the
Court raised sua sponte the question whether, after
the passage of time between the sentencing hearing on July
24, 2019 and the completion of supplemental briefing on
August 26, 2019, it still had the authority to vacate the
restitution order and/or to amend the conditions of
supervised release, should it agree that it was appropriate
to do so. See United States v. Jabr, Criminal No.
18-0105, 2019 U.S. Dist. LEXIS 152742 at *2 (D.D.C. Sept. 9,
2019). In its response to the Court's order, the
government argued that the Court currently does not have the
authority to modify the oral sentence pronounced on July 24,
2019. See Gov't Resp. to the Mem. Op. and Order
[Dkt. No. 56]. It cited Rule 35(a) of the Federal Rules of
Criminal Procedure, which permits a court to correct a
sentence resulting from “arithmetical, technical, or
other clear error” only “[w]ithin 14 days after
sentencing.” See id. (citing Fed. R. Crim. P.
35(a)). The government also pointed out that this
fourteen-day time limitation served as a jurisdictional bar
to the Court's ability to change a sentence. See
id. (citing United States v. Griffin, 524 F.3d
71, 83 n.14 (1st Cir. 2008) and United States v.
Pletnyov, 47 F.Supp.3d 76, 79 (D.D.C. 2014)). The
defendant, through counsel, disagreed. While the defendant
argued that the oral pronouncement of the sentence should not
be considered final, it did not cite to any law that
recognizes the Court's authority at this late date to
vacate or amend the sentence the Court had orally imposed on
July 24, 2019. See Def.'s Resp. to the Mem. Op.
and Order [Dkt. No. 57].
Regrettably,
the Court must agree with the government that the Court now
has no jurisdiction to modify the conditions it imposed at
the sentencing hearing on July 24, 2019. It is established
that the oral pronouncement of a sentence constitutes the
official sentence of the Court. The written judgment merely
memorializes the sentence previously announced. See
United States v. Knight, 824 F.3d 1105, 1112 (D.C. Cir.
2016) (noting that “oral ‘pronouncement of the
sentence constitutes the judgment of the court'”)
(citing United States v. Love, 593 F.3d. 1, 9 (D.C.
Cir. 2010)); United States v. Bikundi, Criminal No.
14-0030, 2017 WL 10439558, at *1 n.1 (D.D.C. June 28, 2017)
(stating that oral pronouncement of sentence controls over
the written judgment form). See also United States v.
Booker, 436 F.3d 238, 245 (D.C. Cir. 2006) (holding that
“no second or different judgment may be rendered . . .
until the first shall have been vacated and set aside or
reversed on appeal or error”). The court “has no
lawful authority to supplement [the oral pronouncement of a]
sentence with a second one.” See United States v.
Booker, 436 F.3d at 245. If the written judgment form
were to conflict with the Court's orally pronounced
sentence, the written judgment form would be a
“nullity” because “the oral pronouncement
constitutes the judgment, ” and there can only be
“one judgment.” Id. And that judgment
may only be corrected within fourteen days after it is
announced. See Fed. R. Crim. P. 35(a). See
also Fed. R. Crim. P. 35(c)
(“‘sentencing' means the oral announcement of
the sentence”); United States v. Pletnyov, 47
F.Supp.3d at 79.
If the
Court had jurisdiction, it would vacate the restitution
condition, as both parties now request. As for the
conflicting positions of the parties with respect to the
search condition and the interview condition, the Court will
not address those issues because it is without jurisdiction
to decide them. Unfortunately, those issues will have to be
resolved in the first instance by the court of appeals. This
Court has no choice but to enter a judgment consistent with
its oral ruling and let the remaining issues proceed to
argument before the court of appeals. Accordingly, it is
hereby
ORDERED
that the defendant's motion to stay payment of
restitution [Dkt. No. 47] is GRANTED; and it is
FURTHER
ORDERED that the sentence announced orally at the July 24,
2019 sentencing hearing will be embodied in a ...