Armed bank robbery sentence remanded for application of incorrect enhancement in original sentence and failure to justify alternative sentence.

United States v. Smalley, No. 06-4552 (3d Cir. Feb.29, 2008). At sentencing in this armed bank robbery case, the government and defense argued that the defendant should receive a three-level enhancement for "brandishing or possessing" a weapon under U.S.S.G. § 2B3.1(b)(2)(E). The judge, however, accepted the probation officer’s recommendation that he should receive a four-level enhancement for "otherwise using" a weapon under U.S.S.G. § 2B3.1(b)(2)(D). The judge imposed a 71-month sentence -- at the high end of the range.

After sentencing, the government wrote to the Court requesting that it issue an amended judgment explaining that it would have imposed the same sentence even if it had applied the three-level enhancement. The Court filed the amended judgment, but outside the time limit set under Federal Rule of Criminal Procedure 35(a).

On appeal, the Third Circuit agreed with the government and the defense that the lower enhancement should apply because although the defendant threatened to stab the teller if she didn’t cooperate, he never took his knife out of his pocket. The government argued harmless error because the district court amended the judgment to explain that the defendant would have received the same sentence no matter what enhancement applied.

The Third Circuit rejected the amended judgment for its failure to comply with Federal and Local procedural rules (Rule 35/out of time, Rule 36/not clerical, L.A.R. 3.1/not amplifying), and because it provided no basis for the 8-month upward departure or variance that would have been necessary to maintain the 71-month sentence (a Gall/Gunter error).