United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court pursuant to George Pizano,
Jr.'s Motion for Reconsideration (Doc. # 156), filed on
August 21, 2017. For the reasons that follow, the Motion is
March 30, 2011, Pizano was sentenced to 240 months of
imprisonment for conspiracy to distribute fifty grams or more
of methamphetamine in violation of 21 U.S.C. §§
841(b)(1)(A)(viii) and 846. (Doc. ## 72, 79, 87). In addition
to the 240-month term of imprisonment, Pizano was sentenced
to 120 months, or 10 years, of supervised release. (Doc. ##
79 at 3, 87 at 38). Subsequently, after the Government filed
a Rule 35 motion, the Court held a hearing at which
Pizano's term of imprisonment was reduced to 144 months.
(Doc. ## 95, 108, 109 at 2).
the Court granted a reduction in prison time at the hearing,
the Court declined to reduce Pizano's term of supervised
release. (Doc. # 153 at 41). But, in informing the parties of
its decision not to reduce Pizano's term of supervised
release, the Court stated that Pizano's term of
supervised release was five years, rather than ten years.
(Id.). Because the Court stated that only
Pizano's term of imprisonment would be reduced, the
amended judgment entered after the Rule 35 hearing indicates
a term of imprisonment of 144 months and a term of supervised
release of 120 months. (Doc. # 109 at 3).
subsequently filed a pro se motion to amend the amended
judgment, to which the Government responded. (Doc. ## 150,
152). On August 8, 2017, the Court denied the motion because
its statement at the Rule 35 hearing - that Pizano's term
of supervised release was five years but no reduction in the
original term of supervised release would be granted - was
ambiguous. (Doc. # 155 at 3-4). Therefore, the Court
concluded that the amended judgment should control and
Pizano's 120-month term of supervised release would
Pizano has filed a Motion for Reconsideration because he
disagrees with the Court's August 8, 2017, Order. (Doc. #
156). Pizano argues “there w[as] absolutely no
ambigu[i]ty between the court's pronouncement of sentence
it imposed, it me[a]nt what it stated in open court and the
court stated what it me[a]nt.” (Id. at 1).
is incorrect. The Court's statement at the Rule 35
hearing was ambiguous. The Court stated: “It's
still five years' probation. I'm not going to reduce
that.” (Doc. # 153 at 41). The Court clearly expressed
an intent not to reduce the term of supervised release
imposed at Pizano's original sentencing. But Pizano's
term of supervised release was set for 120 months at the
original sentencing, rather than for five years. Because the
Court's statement was ambiguous, the amended judgment
entered after the hearing, which stated that Pizano's
term of supervised release remains 120 months, controls.
United States v. Bonilla, 579 F.3d 1233, 1245 (11th
Cir. 2009) (“‘[W]hen there is an ambiguity in the
oral sentencing, as opposed to a conflict between the oral
pronouncement and the written judgment, it is proper to look
to the written judgment to ascertain the court's
intentions.'” (citation omitted)).
also argues that the rule of lenity should apply to this
circumstance and any ambiguity should be resolved in his
favor. (Doc. # 156 at 2). But the rule of lenity applies only
if a serious ambiguity exists in a criminal statute.
United States v. Castleman, 134 S.Ct. 1405, 1416
(2014)(“ [T]he rule of lenity only applies if, after
considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute,
such that the Court must simply guess as to what Congress
intended.'” (quoting Barber v. Thomas, 560
U.S. 474, 488 (2010))); see also United States v.
Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003) (“The
rule of lenity applies if a statute - in this instance, a
sentencing guideline - is ambiguous.”). This situation
does not involve the interpretation of a criminal statute or
sentencing guideline so the rule of lenity does not apply.
although the Court's statement at the Rule 35 hearing was
ambiguous, the amended judgment was not - it clearly stated
Pizano's term of supervised release remained 120 months.
Thus, Pizano's assertion that he would have appealed the
amended judgment if he had known he was still sentenced to a
120-month term of supervised release is unpersuasive.
it is hereby
ADJUDGED, and DECREED:
Pizano, Jr.'s Motion for Reconsideration (Doc. # 156) is