United States v. Eddie E. Wingender, AKA Edward E. Wingender

Circuit Judge:

In 1979, Wingender was given a suspended sentence following his conviction for falsifying a loan application in violation of 18 U.S.C. § 1014 (1976). In 1981, the suspended sentence was reinstated after he was convicted of counterfeiting in violation 18 U.S.C. § 472 (1976). The district court ordered that Wingender serve the reinstated sentence consecutively “to any state sentence for which the defendant now stands committed.” E.R. at 41. On the following day, the prosecuting attorney discovered that the district court had made a mistake because Wingender did not stand committed for any state sentence but, rather, stood committed pursuant to a newly imposed federal sentence based upon the intervening counterfeiting conviction.

Two days later, the district court corrected the error by modifying its sentencing order to provide that the reinstated sentence was to operate consecutively to the new federal sentence imposed for the counterfeiting conviction. Wingender thereupon moved to correct the sentence under Rule 35 of the Federal Rules of Criminal Procedure, claiming that it violated the double jeopardy clause of the fifth amendment. He now appeals the district…