When a Written Judgment Conflicts with the Oral Pronouncement:
Clarifying District Courts’ Duties in § 2255 Sentence Corrections – A Commentary on United States v. Barrow (2d Cir. 2025)

1. Introduction

The Second Circuit’s summary order in United States v. Barrow, Nos. 15-1472-cr (L) & 23-6963-cr (Con.) (July 1, 2025), provides unusually dense procedural guidance on three intersecting topics: (1) a district court’s remedial discretion under 28 U.S.C. § 2255 when ineffective assistance taints pre-trial plea bargaining; (2) the continuing vitality and limits of the concurrent-sentence doctrine on appeal; and (3) the long-standing “oral-controls-written” rule governing sentencing discrepancies. Although stamped a “SUMMARY ORDER” (and therefore formally non-precedential under 2d Cir. Local R. 32.1.1), the decision synthesises a web of Supreme Court and Second Circuit cases and sets a practical roadmap for trial judges confronted with post-conviction plea-bargaining errors.

Below, the commentary moves from background to doctrinal analysis, demystifies complex concepts, and assesses how Barrow will shape future litigation.

2. Summary of the Judgment

Amended Judgment Vacated: The panel vacated the 2023 amended judgment because the written document conflicted with the district court’s oral statements at a May 31, 2023 hearing and the court offered no reasoning for the deviation.
Original Judgment Partially Affirmed: The court affirmed the 2015 original judgment only insofar as it denied Rule 29/33 post-trial motions attacking the jury’s verdict. All other aspects remain in flux pending remand.
Remand Instructions: On remand the district court must either (a) issue an amended judgment reflecting the single-count/25-year agreement announced orally, or (b) furnish a reasoned explanation if it insists on a different multi-count structure.
Rejection of Government’s Concurrent-Sentence Argument: The panel declined to sidestep the appeal under the concurrent-sentence doctrine, partly because separate $100 special assessments create non-concurrent consequences (invoking Ray v. United States).
Direct-Appeal Issues Resolved: Barrow’s claims of prosecutorial misconduct, trial-stage ineffective assistance, and evidentiary insufficiency were rejected on the merits.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Ray v. United States, 481 U.S. 736 (1987) – establishes that special assessments render sentences “not concurrent” for concurrent-sentence-doctrine purposes. The panel used Ray to justify reaching the merits.
Kassir v. United States, 3 F.4th 556 (2d Cir. 2021) and Al-’Owhali v. United States, 36 F.4th 461 (2d Cir. 2022) – modern Second Circuit treatments of the doctrine; clarified discretionary nature but also its limits on direct appeal.
Rosario, 386 F.3d 166 (2d Cir. 2004) – expresses the “oral controls written” principle. Critical to deciding that the May 31 hearing did not constitute a formal sentencing, thus making the amended judgment the operative order.
United States v. Peña, 58 F.4th 613 (2d Cir. 2023) – recent articulation of the menu of remedies available under § 2255: vacate, set aside, correct, or resentence. In Barrow the panel recognised the district court’s latitude under Peña, but stressed the need for transparent explanation.
Magwood v. Patterson, 561 U.S. 320 (2010) and Johnson v. United States, 623 F.3d 41 (2d Cir. 2010) – govern successive § 2255 petitions after an “amended judgment.” Invoked to reassure Barrow he could still raise new ineffective-assistance claims post-remand.
Lafler v. Cooper, 566 U.S. 156 (2012) – forms the substantive basis for finding trial counsel ineffective for bad plea advice; shapes the remedial debate.

3.2 The Court’s Legal Reasoning

The panel’s reasoning unfolds in two tracks.

Track 1 – Procedural Integrity of the Amended Judgment
a. Determine whether the May 31 proceeding constituted a “resentencing.”
b. Conclude it was not; therefore the written judgment is the operative act.
c. Because the written judgment added six counts without explanation, either a clerical error under Fed. R. Crim. P. 36 or an unexplained discretionary deviation occurred.
d. Lack of reasoning frustrates appellate review (citing Cohen v. FB Air and Cavera). Remedy: vacate and remand for clarification or correction.
Track 2 – Substantive Attacks on the Underlying Conviction
The panel addressed – and rejected – Barrow’s direct-appeal claims:
- Prosecutorial misconduct: comments in rebuttal summation were permissible fair reply to defense arguments (Bubar).
- Trial counsel effectiveness: decisions were strategic; no Strickland prejudice.
- Evidence sufficiency: accomplice testimony plus corroborating proof met the Jackson v. Virginia standard.

3.3 Expected Impact of the Decision

Record-Explanation Requirement: Even in § 2255 proceedings where courts enjoy broad remedial discretion, they must articulate reasons when departing from previously announced resolutions. Failure invites vacatur.
Concurrent-Sentence Doctrine Caution: Litigants should not assume the doctrine will immunise multi-count judgments from review where a financial penalty (special assessments, restitution apportionment) differentiates counts.
Oral vs. Written Discrepancies: Barrow reinforces that merely labeling a hearing “resentencing” does not make it so. Practitioners must secure a clear record or risk later confusion.
Post-Lafler Remedies: The decision signals acceptance of creative § 2255 fixes (e.g., converting Rule 33 motions), but insists that plea-offer-equivalent sentences demand procedural clarity.

4. Complex Concepts Simplified

Concurrent-Sentence Doctrine: A judicial “economy” rule allowing appellate courts to affirm one valid conviction and skip review of additional counts carrying identical and concurrent sentences if no collateral consequences attach.
28 U.S.C. § 2255 – Remedies: The federal habeas-like vehicle permitting a prisoner to ask the sentencing court itself to correct errors. Courts may “vacate,” “set aside,” “correct,” or “resentence.” Each has distinct procedural ramifications.
Oral-Controls-Written Rule: If a judge pronounces a sentence in open court and later signs a conflicting written judgment, the spoken words generally prevail. Barrow shows the rule presupposes an actual sentencing hearing.
Special Assessment: A mandatory $100 fee per felony count under 18 U.S.C. § 3013. Because it is imposed per count, each assessment is an independent legal consequence, defeating “concurrency.”
Lafler/ Frye Error: Sixth-Amendment violation where counsel’s deficient advice or failure causes a defendant to reject a plea bargain and receive a harsher post-trial sentence.

5. Conclusion

United States v. Barrow reminds bench and bar that the freedom a district court enjoys when repairing Lafler errors under § 2255 carries a correlative duty to construct an unambiguous record. In the Second Circuit, an unexplained shift from an orally endorsed single-count judgment to a written multi-count judgment will not survive appellate scrutiny, even where the aggregate imprisonment term remains unchanged.

The decision also underscores that financial assessments matter; they create independent consequences that keep appeals alive despite concurrent imprisonment. For practitioners, the lesson is twofold: memorialise every remedial agreement in writing and prepare to justify any deviation, lest an appellate court undo years of post-conviction negotiations.

“When a Written Judgment Conflicts with the Oral Pronouncement: Clarifying District Courts’ Duties in § 2255 Sentence Corrections – A Commentary on United States v. Barrow (2d Cir. 2025)”