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| Sentence Modification |
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BLAST FROM THE PAST--SENTENCE MODIFICATIONS: There was some discussion recently on the OCDLA list-serv concerning whether a sentence may be modified upward at the request of the State via the modification statute (22 O.S. 982a). I found an unpublished Order that addressed this question and concluded that such sentence modifications "are limited to downward modifications." The Order can be found at Lloyd Henry Neuville v. State, No. PC-2000-1412 (Okl.Cr., March 20, 2001), and the language concerning sentence modifications can be found at pages 5-6 and footnote 6.
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United States v. Penson,
No. 06-3419 (6th Cir., May 27, 2008): Sentence Modification: The District Court sentenced Penson to term higher than the statutory maximum and made other procedural errors. The case also involved an unusual circumstance where the sentence issued orally from the bench was different than the written Judgment and Sentence. The rule is that the oral sentence from the bench controls (since the defendant is present in open court to hear it).
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United States v. Bowen,
No. 07-1216 (10th Cir., June 2, 2008) (Published): 1. Brandishing a Firearm; 2. Sentence Modification: Bowen was convicted of several counts, including Aiding and Abetting the Retaliation Against a Witness, Conspiracy to Retaliate Against a Witness, and Aiding and Abetting the Possession and Brandishing of a Firearm in Furtherance of a Federal Crime of Violence. The panel held: 1) use of a firearm as a club constituted "brandishment" of a firearm under 18 U.S.C. sec. 924(c)(1)(A)(ii); 2) the evidence was sufficient; and 3) the sentence should reflect the sentence imposed from the bench, rather than the written judgment. On this last issue, the judge sentenced Bowen in open court to 84 months, but the written judgment said 96 months.
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