Is a sentence imposed by oral pronouncement or by written judgment?

          In United States v. Davis, Aundre Davis was convicted of several offenses including three counts of sex trafficking of a minor for helping to arrange prostitution acts by the minor over a three day period. At sentencing, the district court applied an undue influence enhancement and split the sex trafficking counts into three groups. The court orally pronounced a sentence of life imprisonment. The next day the court contacted counsel and indicated it was inclined to impose a different sentence because of its concern that there was an unwarranted sentencing disparity between Mr. Davis and his co-defendants. A sentence of 360 months imprisonment was imposed and judgment was entered accordingly.

            The Sixth Circuit held that the district court properly split the sex trafficking counts into three groups – one for each of the three days that the minor engaged in prostitution. The court reasoned that under the commentary to U.S.S.G. § 3D1.2 if an offender commits the same crime against the same victim on different dates, then each act is a separate instance of harm and the offenses should be grouped separately.

            With respect to the undue influence enhancement (U.S.S.G. § 2G1.3(b)(2)(B)), there is a rebuttable presumption that the enhancement applies where, as here, the defendant is at least ten years older than the minor. (U.S.S.G. § 2G1.3, comment.(n.3(B)). The district court committed error because it “relied almost exclusively” on the presumption to impose the enhancement and the Guidelines required it to “closely consider the facts of the case.” Davis, Op. at 7. As the Sixth Circuit saw it, the evidence “undercuts this presumption” because the minor testified that “she had previously engaged in prostitution, willingly engaged in prostitution during the events of this case, contacted the defendants to have them procure her clients, and refused a client procured for her by Davis.” Davis, Op. at 7. Since the district court did not provide an adequate explanation for imposing the enhancement, the Sixth Circuit vacated the sentence and remanded for the district court to make factual findings on the enhancement and resentence Mr. Davis.

            In a cross-appeal, the government argued that Mr. Davis’ sentence was imposed when it was orally pronounced and the district court did not have authority to modify it after the pronouncement. Mr. Davis argued that reconsideration was permissible because a sentence is imposed when the written judgment is entered. The Sixth Circuit agreed with the government’s position. Fortunately for Mr. Davis, the issue was moot because the court was vacating and remanding the case for resentencing on the undue influence enhancement. At the resentencing, “the district court is free to impose a sentence of thirty years’ imprisonment—or another sentence.” Davis, Opp. at 9.  

            In footnote 4 of the Davis opinion, the Sixth Circuit noted that subject to certain specified circumstances 18 U.S.C. § 3582(c) prohibits modification of “a term of imprisonment once it has been imposed.” In addition, Fed.R.Crim.Proc. 35 allows a sentence reduction for substantial assistance or to correct a clerical error. Since none of the specified circumstances existed here, “the district court could change its mind after orally pronouncing sentence in this case only if the term of imprisonment had not yet been imposed.” Davis, Opp. at 9, n.4. Although the Sixth Circuit has “not squarely addressed” the issue of whether a sentence is imposed when it is orally pronounced or when the written judgment is entered, it has “strongly implied that a sentence is imposed when it is orally pronounced.” Davis, Op. at 9, n.4. Indeed, the court observed that Rule 35(c) states that ‘“sentencing’ means the oral announcement of the sentence.” Davis gives us a good idea where the court is going when it is squarely faced with the issue of when is a sentence imposed.