United States of America v. Adaysha Tanner, also known as Adaysha Chark, also known as Jonathan Chark

New Orleans, LA - Criminal defense lawyer represented defendant with one count of financial aid fraud charge.

Ordinarily, if a defendant raises a sentencing error for the first time on

appeal, we review only for plain error. United States v. Diggles, 957 F.3d 551,

559 (5th Cir. 2020) (en banc), cert. denied, 2020 WL 6551832 (U.S. Nov. 9,

2020). But that does not apply where, as here, the alleged error appears for

the first time in the written judgment. Id. Instead, because the defendant did

not have the opportunity to object in the district court, we review for abuse

of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).

A defendant has a Fifth Amendment due process right to be present

at sentencing. Diggles, 957 F.3d at 557. "Including a sentence in the written

judgment that the judge never mentioned when the defendant was in the

courtroom is tantamount to sentencing the defendant in absentia.” Id. (quotation omitted). Thus, due process dictates that a district court "must orally

pronounce a sentence.” Id. at 556.

Accordingly, where the oral pronouncement and written judgment

conflict, the oral pronouncement controls. Id. at 557. But that is so only if

the two actually conflict. If, instead, "the written judgment simply clarifies

an ambiguity in the oral pronouncement, we look to the sentencing court's

intent to determine the sentence.” United States v. Tang, 718 F.3d 476, 487

(5th Cir. 2013) (per curiam). We determine that intent by examining "the

entire record.” United States v. English, 400 F.3d 273, 276 (5th Cir. 2005)

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(quotation omitted).

Our first task, then, is to determine whether there is a conflict between

the sentence as orally pronounced and the written judgment or, conversely,

whether any discrepancy between the two merely reflects an ambiguity. The

district court explained at the sentencing hearing that, although "the total

intended loss is $117,395,” the "net” amount "owed in restitution” was

$106,744. It clarified that, in arriving at that number, Tanner's "previous

payments ha[d] been subtracted.” The present confusion arises from its next

statement, where it declared that "the [$]106,744 appears to be . . . the correct restitution amount, although in chambers we discussed the addition of

language to the form for the suggested sentence that will read 'subject to

credits from IRS refunds, garnishments, and other payments, with a net balance currently showing due of $63,221.'”

After confirming with trial counsel that the statement was "accurate

as a discussion point in an agreement between the Court and counsel,” the

court went on to "find[] that the original calculation in the [presentence

investigation report] of $106,744 is correct.” Then, apparently referring to

the $106,744, the court affirmed that there was "an agreed amount of restitution.” But in its last word on the matter, the court reiterated its earlier

statement. There, it proclaimed that "[r]estitution in the amount of

$106,744 is ordered to be paid” and "that the restitution amount is subject

to credits already received . . . with a current accounting balance for restitution shown at $63,221.”

As previously explained, the court then imposed restitution of

$106,744 in the written judgment, which states that "[t]he defendant shall

receive credit for all payments previously made . . . .” The written judgment

does not, however, provide $63,221 as the "current accounting balance for

restitution,” as mentioned in the oral pronouncement.

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The district court could have been clearer. At times, it proclaimed

that the proper "net” amount owed was $106,744. In some tension with

that, it expressed elsewhere that the restitution amount was "subject to

credits already received . . . with a current accounting balance for restitution

shown at $63,221.”

Lack of clarity notwithstanding, we see no direct conflict between

those statements and the written judgment. The court stated, several times,

that the "correct” or "net” amount owed in restitution was $106,744—the

amount it imposed in its written judgment. Nonetheless, because the oral

pronouncement was ambiguous, "we look to the sentencing court's intent to

determine the sentence.” United States v. Romero-Medrano, 899 F.3d 356,

363 (5th Cir. 2018) (quoting Tang, 718 F.3d at 487).

The record confirms that the court intended to order restitution of

$106,744. The presentence investigation report, which the court adopted,

divides Tanner's fraud into two distinct line items: fraudulent loans and

fraudulent grants. The "total outstanding loan balance . . . [was] $63,221,”

and the "outstanding balance for fraudulently obtained grants [was]

$43,523,” making "$106,744” the "total restitution due.”

That net amount was reduced from the gross total of $117,395, which

was "based on fraudulent loans totaling $63,977 and fraudulent grants totaling $53,418.” To get to the "outstanding” balance, the presentence investigation report subtracted "any amounts already paid back to the government.” Thus, the restitution of $106,744 was the proper total—the

"credits” to which the court referred in its oral pronouncement had already

been applied. The court acknowledged as much when it said that Tanner's

"previous payments ha[d] been subtracted,” before it arrived at $106,744 as

"the correct restitution amount.”

There is nothing in the record to indicate that the court intended to

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forgive the entire outstanding balance of $43,523 for the fraudulently obtained grants. Nor is there anything in the record to support Tanner's bald

assertion that, at the time of sentencing, "she had made substantial progress

towards paying down the amount owed,” which, coincidentally, happened to

be the exact amount of the outstanding balance for grants. To the contrary,

it appears that the court merely misspoke when it referred to the outstanding

loan balance of $63,221 as the entire outstanding balance for restitution

The oral pronouncement was ambiguous. But the written judgment

“clarified that ambiguity.” United States v. Milton, 805 F. App’x 280, 281

(5th Cir. 2020) (per curiam) (citing Schurmann v. United States, 658 F.2d

389, 391 (5th Cir. Unit A Oct. 1981)). The record makes certain that the

written judgment reflects the district court’s intent. Accordingly, the written

judgment of sentence is AFFIRMED