Opinion
CR-09-8016-PCT-LOA.
August 14, 2009
ORDER
On August 10, 2009, the undersigned Magistrate Judge discovered that the Judgment, docket # 20, entered in this criminal case on July 10, 2009, did not include the waiver of drug testing as ordered at Defendant's July 10, 2009 sentencing. (docket # 18) This omission was clearly a clerical error within the meaning of Rule 36, FED.R.CRIM.P., for which this Court accepts ultimate responsibility.
Supervisory U.S. Probation Officer Rod R. McKone's July 29, 2009 Memorandum indicates that "[a]t the time of sentencing, the Court ordered the mandatory drug testing provisions of 18 U.S.C. §§ 3583(a)(5) and 3583(d) be suspended. However, the judgment does not reflect the condition being waived." Officer Rod R. McKone requests "the judgement in this case be amended to reflect condition # 17[:] `Unless suspended by the Court, you shall submit to one substance abuse test within the first 15 days of supervision and thereafter at least two, but no more than two periodic substance abuse tests per year of supervision, pursuant to 18 U.S.C. §§ 3563(a)(5) and 3583(d) be suspended as originally intended by the Court.'"
The Court finds that Judgment herein may be properly amended to be consistent with the Court's oral pronouncement of Defendant's sentence in open court at time of sentencing. Rule 36, FED.R.CRIM.P.; United States v. Goodwin, 15 Fed.Appx. 511 (9th Cir. 2001); United States v. Carr, 421 F.3d 425, 432-433 (6th Cir. 2005) (Rule 36 "authorizes a court to correct only clerical errors in the transcription of judgments, not to effectuate its unexpressed intentions at the time of sentencing.").
Rule 36 Clerical Error
After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.
Good cause appearing,
IT IS ORDERED that the Judgment herein is hereby amended to exclude the the following paragraph which was suspended by the Court at the time of the July 10, 2009 sentencing:
17. Unless suspended by the Court, you shall submit to one substance abuse test within the first 15 days of supervision and thereafter at least two, but no more than two periodic substance abuse tests per year of supervision, pursuant to 18 U.S.C. §§ 3563(a)(5) and 3583(d) be suspended.
The Clerk is hereby directed to prepare and file Amended Judgment consistent with this order.
IT IS FURTHER ORDERED that Defendant's supervising probation officer shall promptly provide actual notice and a copy of this Order and Amended Judgment to the Defendant. IT IS FURTHER ORDERED directing the Clerk to provide a copy of this order to counsel of record.