United States v. Richard Ralph Bergmann, Jr.

Bergmann appeals from denial of his motion under Fed.R.Crim.P. 36, by which he sought to reduce his sentence. He requests, by way of relief, that we remand for reconsideration and for an evidentiary hearing with opportunity for cross-examination.

In an Order dated May 14, 1984 Judge Fitzgerald committed Richard Bergmann to federal custody for a total of six years’ imprisonment (five concurrent terms, each of five years’ duration; plus four concurrent terms, each of one year’s duration). The Order provided explicitly that Berg-mann’s terms of five years and one year were to run “consecutively, not concurrently.”

Two years later, in June of 1986, Berg-mann moved to correct his sentence. Berg-mann had discovered a discrepancy between his Judgment/Commitment Order and the court reporter’s certified transcript of his sentencing hearing. According to the transcript, Judge Fitzgerald ordered that the five-year and one-year terms of incarceration should run “concurrently.”

In support of his Rule 36 motion Berg-mann pointed to a direct conflict between the sentence imposed in his Judgment/Commitment Order and the sentence apparent in the court reporter’s certified transcript. The…