The opinion of the court was delivered by: James H. Jarvis United States District Judge
On April 19, 2006, the defendant pled guilty to a two-count information charging him with conspiracy to conduct an illegal gambling operation, i.e., "the numbers," in violation of 18 U.S.C. §§ 371 and 1955 (count one) and with conspiracy to launder proceeds of an illegal gambling operation in violation of 18 U.S.C. §§ 1956(h) and 1957 (count two) [see Doc. 36]. On July 19, 2006, the court conducted a sentencing hearing in open court and, among other things, imposed a term of imprisonment of twelve months and one day [see Doc. 105].
On July 24, 2006, before a written judgment was entered, the defendant filed a motion for reconsideration of the court's sentencing decision [see Doc. 108]. In particular, the defendant sought a term of probation or time in a half-way house as opposed to this term of incarceration. Although the defendant discussed several factors to support his motion, only the following caused some consternation to the court because all others had been fully considered before sentencing:
9. Undersigned counsel has practiced before the United States District Court for the Eastern District of Tennessee since 1988 and has been involved in the representation of individuals in a number of gambling prosecutions over the years. These prosecutions have involved video poker machines and illegal book making.
To undersigned counsel's knowledge, no participant in these activities, who pled guilty, cooperated, and received a Motion for Downward Departure from the United States, including those who were denominated to be an organizer or leader under the Federal Sentencing Guidelines, have [sic] ever been sentenced to a term of incarceration in the Northern Division of the Eastern District of Tennessee.*fn1 Undersigned counsel recognizes that every case is different; however, counsel respectfully suggests that treating similarly situated defendants convicted of similar offenses is a relevant and appropriate consideration for the Court. ... [See Doc. 108-1, p.4]. Moreover, in considering the above, the court was mindful of the following critical representation by defense counsel:
(11) Undersigned counsel is authorized to represent to this Court that the United States does not oppose this motion for reconsideration if the Court deems it appropriate to reconsider Mr. Houston's sentence. [Id. at p.5].
On July 27, 2006, this court filed a memorandum and order [Doc. 110] in which it granted defendant's motion to the extent that no term of incarceration was imposed; rather, a term of probation of two years would be ordered. In reaching this conclusion, the court focused on the "need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," see 18 U.S.C. § 3553(a)(6), and made the following observation:
The court has now independently researched this area and concludes that defense counsel is indeed correct. Thus, under these unique circumstances, the court concludes that it would be inconsistent and unjust to sentence this defendant to a term of incarceration, when all other similarly situated defendants have received a term of probation. If anything, this court strives mightily to impose sentences in criminal cases in a fair and consistent manner. In light of this new information, the court is of the definite and firm opinion that it has not done so in this particular case. [See id., pp.2-3].
Therefore, the court held that "a sentence of twelve months and one day is greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, or to afford adequate deterrence." [Id. at pp.3-4]. The court further observed "that the original sentence was too harsh and greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2)" [id. at p.4]. Moreover, given the fact that defense counsel represented that the government had no objection to this motion for reconsideration, the court believed this matter was fully concluded and entered a written judgment on July 31, 2006, reflecting this change [see Doc. 112].
Less than three days later, however, the government cries "Foul" in the strongest possible language, and now seeks to strike that amended judgment [see Doc. 116].*fn2 The defendant has timely responded to the government's motion [see Doc. 133], and the government has in turn replied to that response [see Doc. 136]. Thus, this matter is once again ripe for adjudication. For the reasons that follow, the court is constrained to grant the government's motion whereby an amended judgment will be entered reflecting the sentence of twelve months and one day imposed on July 19, 2006.
The court will first address a procedural issue raised by the government in its motion. The government complains that it was entitled to ten days within which to respond to defendant's motion for reconsideration filed on July 24, 2006. According to its calculations, the government had up to and including August 7, 2006, within which to do so, and the court did not allow that much time to pass before considering the merits of defendant's motion for reconsideration.
Ordinarily, the government would be correct. The government or the defendant for that matter would have ten days to respond to a "garden variety" motion in a criminal case, unless a motion for extension of time were filed and granted. It is also undisputed the court did not wait for the usual amount of time to expire as the memorandum and order at issue was filed just three days after defendant's motion for reconsideration.
The government must be reminded, however, that defense counsel represented in no uncertain terms that the government had no objection to that motion for reconsideration. Furthermore, this court was of the opinion that if the defendant were, in effect, to be resentenced, this resentencing must occur within seven days after the sentence had been orally imposed. The court's opinion was based on the unambiguous language of Federal Rule of Criminal Procedure 35, which requires any correction based on "arithmetical, technical, or other clear error" to occur within seven days after sentencing, i.e., seven days after "the oral announcement of the sentence." Fed. R. Crim. P. 35(a) and (c). According to the court's calculation, this resentencing had to occur on or before July 28, 2006.*fn3 The Sixth Circuit has recently confirmed this court's interpretation of Rule 35, holding that "Rule 35 requires a district court to actually resentence a defendant within the seven-day period therein prescribed." United States v. Vicol, 460 F.3d 693, 69 , (6th Cir. 2006). Otherwise, the district court is deprived of jurisdiction. Id. at 69 . Consequently, had the court waited until August 7, 2006, for the government's response, as the government now suggests, the court would have been totally deprived of jurisdiction to resentence this defendant. The wait in and ...