IN RE TARRANT COUNTY

(comment: 1)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.  2-05-274-CV

IN RE TARRANT COUNTY	RELATOR

------------

ORIGINAL PROCEEDING

------------

MEMORANDUM OPINION
(footnote: 1)

------------

Introduction

Tarrant County seeks a writ of mandamus directing the trial court to vacate an order appointing an “assistant” surveyor and a writ of prohibition precluding the trial court from taking any future action in the underlying case.  We conditionally grant the writ of mandamus but deny the writ of prohibition.

Procedural Background

In 1997, Tarrant County sued Denton County to establish their common boundary line.  In 2002, we reversed a trial court judgment for Denton County, rendered judgment in favor of Tarrant County, and remanded with instructions to the trial court to declare the true boundary line, as declared in our opinion, and to have the boundary line resurveyed.
See

Tarrant County v. Denton County
, 87 S.W.3d 159, 179-80 (Tex. App.—Fort Worth 2002, pet. denied).  On remand, the trial court signed a modified and corrected judgment dated April 6, 2004.
(footnote: 2)  The modified and corrected judgment contained the following paragraphs:

4.	The survey required by this Modified and Corrected Final Judgment shall be performed by Garey W. Gilley . . . , assisted by Brookes Baker Surveyors, P.C., and such other surveyors as may be appointed by this Court. . . .

. . . .

7.	As part of such survey, Garey W. Gilley shall prepare field notes and a plat which shall be filed among the other papers in this case. . . .

8.	After the field notes and plat have been filed in this case, the District Clerk of Parker County is instructed to file certified copies of this [judgment] and the field notes of the boundary line . . . with the . . . General Land Office and the County Clerks of Tarrant and Denton Counties with instructions to the County Clerks that the field notes of the boundary are to be filed in the real property records of their respective counties.

On May 9, 2005, on Denton County’s motion and over Tarrant County’s objection that the survey was nearly complete, the trial court signed an “order appointing additional surveyor,” stating:

It is therefore ordered that . . . in accordance with the final judgment,
W.C. Wilson . . . be appointed to assist Gar[e]y Gilley in the resurveying of the boundary, and
as such shall have the opportunity to reconfirm and verify the work, calculations, placement, and monumentation
of the boundary as [o]rdered by the Court.

(Emphasis added.)

On June 29, 2005, Gilley filed his survey plat, field notes, and certificate of the completed survey under paragraph seven of the modified and corrected judgment and mailed a copy to W.C. Wilson.  That same day, the Parker County District Clerk forwarded the documents to the Commissioner of the General Land Office for filing under paragraph eight of the judgment.

Denton County filed a motion to “suspend effectiveness of prematurely filed field notes and plat of survey” on July 12, complaining that Gilley failed to give Wilson the opportunity to “reconfirm and verify” his work as required by the trial court’s May 9 order.  The trial court conducted a non-evidentiary hearing on July 15.  At the hearing, the trial court stated:

As far as suspending anything, I’m not suspending anything.  But the record’s going to be very clear that I have not approved of the surveys that have been filed, and that I do not consider that the filing by Mr. Gilley was done in accordance with my May 9th Order.

And so therefore, anybody who uses that and relies upon that does so at their risk.  And until I hear back [from] Mr. Wilson and potentially have a -- an evidentiary hearing as to why he disagrees, then nobody can rely on those marks.  And that’s where we are.

Now, is there an order that says that?  No.  But I’m just telling you that’s -- for the record, that’s my own interpretation of my own orders.  And I say plural, orders.  So that’s the status, and that’s the reason we’re here today.

The trial court set the matter for an evidentiary hearing on August 5.  In the meantime, Tarrant County filed this original proceeding.  We stayed the August 5 hearing pending the outcome of this proceeding.

Discussion

Tarrant County argues that the May 9 order is void and unenforceable because:  (1) the trial court lacked jurisdiction to modify its final judgment due to the passage of time, (2) the trial court lacked jurisdiction to enforce its judgment by methods other than those specified in the statutes governing the suit, and (3) the trial court lacked jurisdiction to collaterally attack the General Land Office’s decision to accept, approve, and file Gilley’s field notes and survey.
(footnote: 3)  Denton County responds that Tarrant County waited too long to challenge the May 9 order appointing the “assistant” surveyor, that the appointment of the assistant surveyor was within the trial court’s inherent jurisdiction to enforce its final judgment, and that the trial court has not collaterally attacked the actions of the General Land Office.

Standard of review

In deciding whether a writ of mandamus is appropriate, we recognize that mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law.
Walker v. Packer
, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

Ordinarily, mandamus will not issue unless relator lacks an adequate appellate remedy.
In re Van Waters & Rogers, Inc.
,145 S.W.3d 203, 210-11 (Tex. 2004) (citing
Walker,
827 S.W.2d at 839).  But
where a trial court’s order is void for lack of jurisdiction, the trial court has abused its discretion and the relator need not show that it does not have an adequate remedy by appeal.
In re Sw. Bell Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).  Thus, the key question here is whether the trial court had jurisdiction to appoint the second surveyor.  If it did not, then the order is void and Tarrant County is entitled to mandamus relief as a matter of law.

Trial court’s jurisdiction to appoint “assistant” surveyor

A trial court loses plenary power over its judgment thirty days after signing it.
See
Tex. R. Civ. P.
 329(b).  Thereafter, the trial court has the inherent power to “cause its judgments and decrees to be carried into execution.”
Tex. R. Civ. P.
 308;
Bridas Corp. v. Unocal Corp.
, 16 S.W.3d 887, 889 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d).  An order to enforce a judgment must not be inconsistent with the original judgment and must not constitute a material change in substantial adjudicated portions of the judgment.
Harris County Appraisal Dist. v. West,
708 S.W.2d 893, 896 (Tex. App.—Houston [14th Dist.] 1986, orig. proceeding
).  An order that does so is void.
See id.
 at 897.

In this case, the trial court’s April 6, 2004 judgment appointed Gilley to perform the survey, “
assisted by
. . . such other surveyors as may be appointed by this Court.” (Emphasis added.)
The trial court’s plenary power to modify the judgment expired on May 6, 2004 (no motions that would extend the court’s plenary power appear in the record).

“Assist” means “to give support or aid” or “to be present as a spectator.”
  Webster’s Ninth New Collegiate Dictionary
109 (2002).

The trial court’s May 9, 2005 order granting Wilson the opportunity to “
reconfirm and verify [Gilley’s] work, calculations, placement, and monumentation”
 went far beyond the definition of “assist.”  In essence, the trial court gave Wilson the power to challenge, approve, or reject Gilley’s work, not merely to support, aid, or spectate.  As such, the May 9 order was inconsistent with the judgment, materially changed a substantial adjudicated portion of the judgment, and exceeded the trial court’s inherent authority to enforce the judgment.  After the trial court’s plenary power over the judgment expired, it lacked jurisdiction to modify the judgment as it attempted to do with its May 9 order.
See

First Alief Bank v. White,
 682 S.W.2d 251, 252 (Tex. 1984);
Tex. R. Civ. P.
 329b (providing that trial court’s plenary power to modify a judgment expires thirty days after the judgment is signed).

Denton County correctly observes that “[n]othing in the  . . . judgment limits the trial court’s power to appoint additional surveyors to instances where . . . Gilley feels the need for assistance,” but the judgment does limit the trial court’s power to appoint additional surveyors to oversee and approve Gilley’s work.  The trial court lacked jurisdiction to grant Wilson such sweeping powers.  The May 9 order, therefore, is void to the extent that it granted Wilson the power to do anything other than assist Gilley.

We note that because Gilley has completed the survey and monumentation of the county line and filed his survey and field notes with the General Land Office, there is no need for another surveyor to assist him with the survey.  To the extent that the trial court had the jurisdiction to appoint another surveyor to assist Gilley, the May 9 order is moot.

Denton County argues that Tarrant County is barred by laches from complaining of the May 9 order because Tarrant County waited until the end of July—some two and a half months—to challenge the order by application for writ of mandamus.  Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles.
In re Bahn,
13 S.W.3d 865, 871 (Tex. App.—Fort Worth 2000, orig. proceeding).  One such principle is that equity aids the diligent and not those who slumber on their rights.
Id.
The party asserting the affirmative defense of laches must show both an unreasonable delay by the other party in asserting its rights and harm resulting to it because of the delay.
Id.
An unexplained delay of several months is grounds for denying a petition for writ of mandamus.
See Rivercenter Assocs. v. Rivera,
 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).  Tarrant County explains the delay in this case by noting that the full effect of the May 9 order was not apparent until the July 15 hearing when the trial court interpreted the order and explained what it required of Gilley.  Under the circumstances presented by this case, we hold that Tarrant County’s two-and-a-half-month delay
in seeking mandamus relief was neither unreasonable nor unexplained.

Because the trial court lacked jurisdiction to appoint another surveyor to oversee and approve Gilley’s work, rather than simply assist Gilley with the survey, its May 9, 2005 order is void.

Conclusion

Having determined that the trial court lacked jurisdiction to issue its May 9, 2005 order, we lift the August 3, 2005 stay that we previously ordered in the underlying cause and conditionally grant a writ of mandamus directing the trial court to vacate its May 9, 2005 order.  Because we are confident that the trial court will vacate the order, our writ will issue only if the trial court fails to do so.  We deny Tarrant County’s petition for writ of prohibition without opinion.
See

Tex. R. App. P.
 52.8(d).

ANNE GARDNER

JUSTICE

PANEL A:	CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

LIVINGSTON, J. filed a dissenting opinion.

DELIVERED:  December 12, 2005

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.  2-05-274-CV

IN RE TARRANT COUNTY

------------

ORIGINAL PROCEEDING

------------

DISSENTING OPINION

------------

I respectfully dissent to the majority’s conclusion that the trial court’s May 9, 2005 “Order Appointing Additional Surveyor” is void.  The trial court signed that order as a result of Denton County’s April 18, 2005 “Defendant’s Motion Requesting Additional Surveyor.”  As noted by Denton County in its motion, the trial court’s prior “Modified and Corrected Final Judgment” signed on
April 6, 2004
contains language specifically authorizing the trial court to undertake the action of which Tarrant County now complains:

4.  The survey required by this Modified and Corrected Final Judgment shall be performed by Garey W. Gilley, RPLS, LSLS, assisted by Brookes Baker Surveyors, P.C.
and such other surveyors as may be appointed by this Court.

The “Order Appointing Additional Surveyor” states, “The judgment provided that Mr. Gilley was to be assisted by Brookes Baker Surveyors, P.C., and such other surveyors as may be appointed by the Court,” and continues,

IT IS THEREFORE ORDERED that after having considered the Defendant’s [Denton County’s] Motion, the Court has concluded that its request be granted and, that in accordance with the final judgment, W.C. Wilson, Jr., L.S.L.S. be appointed to assist Gary [sic] Gilley in the resurveying of the boundary, and as such shall have the opportunity to reconfirm and verify the work, calculations, placement, and monumentation of the boundary as Ordered by the Court.

The majority concludes that this postjudgment order is “inconsistent with the judgment, materially changed a substantial adjudicated portion of the judgment, and exceeded the trial court’s inherent authority to enforce the judgment” and was therefore, beyond the trial court’s plenary power over its judgment and void due to lack of jurisdiction, citing
First Alief Bank v. White
and rule 329b.  682 S.W.2d 251, 252 (Tex. 1984);
see also

Tex. R. Civ. P.
 329b.  It is with this conclusion that I respectfully disagree.

A trial court has inherent power to enforce its judgments.

Tex. Gov’t Code Ann.
 § 21.001(a) (Vernon 2004);
Tex. R. Civ. P.
 308.
 This authority to enforce is not extinguished by the mere passage of time or the finality of a judgment.
See

Tex. R. Civ. P.
 329b;
Wall Street Deli, Inc. v. Boston Old Colony Ins. Co.,
110 S.W.3d 67, 69 (Tex. App.—Eastland 2003, no pet.)
; Reynolds v. Harrison
, 635 S.W.2d 845, 846 (Tex. App.—Tyler 1982, writ ref’d n.r.e.).  “Under Rule 308, a trial court is vested with both the authority and affirmative duty to enforce and to protect its orders and decrees.”
Sanders v. Blockbuster, Inc.
, 127 S.W.3d 382, 387 (Tex. App.—Beaumont 2004, pet. denied) (citing
In re Crow-Billingsley Air Park, Ltd.
, 98 S.W.3d 178, 179 (Tex. 2003));
Bridas Corp. v. Unocal Corp.,
16 S.W.3d 887, 889 (Tex. App.—Houston [14th Dist.] 2000, pet. dism'd w.o.j.).

The power to enforce its judgments is inherent in its jurisdiction and a “court may employ suitable methods to enforce its jurisdiction.”
Arndt v. Farris
, 633 S.W.2d 497, 499 (Tex. 1982) (orig. proceeding);
Panda Energy Corp. v. Allstate Ins. Co.,
91 S.W.3d 29, 32 (Tex. App.—Dallas 2002
,
pet. granted, judgm’t vacated w.r.m.
); Greiner v. Jameson,
865 S.W.2d 493, 498-99 (Tex. App.—Dallas 1993, writ denied).  The power and authority of a court to enforce its judgments derive not only from specific grants of judicial power to courts, but also from a court’s “implied” and “inherent” powers.
Greiner
, 865 S.W.2d at 498 (citing
Eichelberger v. Eichelberger
, 582 S.W.2d 395, 398 (Tex. 1979)).  In
Greiner
, Justice Baker, then writing for the Dallas Court of Appeals, stated,

A court does not derive its inherent judicial power from legislative grant or specific constitutional provision but from the very fact that the state constitution has created and charged the court with certain duties and responsibilities.  The inherent powers of a court are those that it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and
in the preservation of its independence and integrity.

Every court having jurisdiction to render a judgment has the inherent power to enforce its judgments.
That power is part of the court’s jurisdiction, and the court may employ suitable methods to enforce its jurisdiction.

Id.
 at 498-99 (emphasis added) (citations omitted).  A trial court retains the authority to enforce its judgments and to do so with enforcement orders that “may not be inconsistent with the original judgment or constitute a material change in the substantive adjudicated portions of the judgment.”
Comm’n for Lawyer Discipline v. Denisco
, 132 S.W.3d 211, 215 (Tex. App.—Houston [14
th
 Dist.] 2004, no pet.) (citing
Katz v. Bianchi
, 848 S.W.2d 372, 374 (Tex. App.—Houston [14th
 Dist.] 1993, no writ));
see also
Tex. R. Civ. P.
 308.  Courts may enforce their judgments through orders of execution, orders of attachment, orders of garnishment, orders for turnover of property, orders of contempt, or by other orders necessary or in proper aid of their jurisdiction.
Tex. R. Civ. P.
 308
; Greiner
, 865 S.W.2d at 498.

The statute under which this  court ordered the location and surveying of the true and correct boundary line contemplates that a trial court or jury must first determine generally where that line should be.
See
Tex. Loc. Gov’t Code Ann.
 § 72.009(b) (Vernon 1999).  Moreover, this statute restricts the General Land Office from marking a contested line on state maps until it receives a proper certified copy of the final judgment.
Id.
 § 72.009(c).  It necessarily follows that a court declaring a true boundary line cannot simultaneously provide a judgment that includes the appropriate survey calls within the very judgment deciding the general location of the line.  For this reason, a trial court must retain extensive authority and jurisdiction to first implement the very actions contemplated by the statute and its prior judgment:  a resurvey when necessary to specifically locate, mark, and identify the proper line.

Although in dicta, the Eastland Court of Appeals observed this very predicament and stated, “Those things [resurveying and remarking] could not be done until the court had determined the disputed questions as to the proper location of such lines.”
Garza County v. Lynn County
, 42 S.W.2d 627, 634 (Tex. Civ. App.—Eastland 1931),
rev’d on other grounds
,
58 S.W.2d 24 (Tex. Comm’n App. 1933, judgm’t adopted).

Whether the court, under its duty, as provided in said article, to ‘determine where such boundary line is located,’ would have implied authority to appoint a surveyor and tax the expense thereof as costs, we need not determine.  Whether so or not, we think the court could attach any reasonable condition to the exercise of his discretion.

Id.
  Specifically, the Eastland court remanded the case with instructions to the trial court to “adjudge the location of the boundaries involved . . . and, if deemed advisable, have an actual survey made and incorporate the result thereof in the final judgment.”
Id.
From this we can conclude that the statute  contemplates and recognizes the necessity of a court’s continuing jurisdiction to enforce its judgment to establish disputed county boundaries.

Additionally, as mentioned above, the statute contemplates that a trial court must actually enter another “final judgment” officially adopting and incorporating the resurvey and remarking that it supervised and approved.
See
Tex. Loc. Gov’t Code Ann.
 § 72.009(c).
We have already held so in this case:

The trial court expressed concern that it would not be able to enforce its judgment later if the White line is not permanently marked and monumented before final judgment is rendered.  However, the trial court retains continuing jurisdiction to enforce its judgment.
See
Tex. Civ. Prac. & Rem. Code Ann.
§ 37.011 (Vernon 1997);
Tex. R. Civ. P.
301, 308;
Reynolds v. Harrison,
635 S.W.2d 845, 846
 (Tex. App.—Tyler 1982, writ ref'd n.r.e.).  Accordingly, the trial court will be able to oversee the marking and monumentation
before the final judgment and field notes are filed with the General Land Office
.

In re Tarrant County
, 16 S.W.3d 914, 919 (Tex. App.—Fort Worth 2000, orig. proceeding) (emphasis added).  Thus, I believe and would hold that the trial court had the duty and authority to supervise and enforce its April 6, 2004 final judgment by entry of any additional orders so long as they contained nothing inconsistent with the final judgment or a material change from it.
See Denisco
, 132 S.W.3d at 215;
Reynolds
, 635 S.W.2d at 846.  `

In connection with this limitation, the majority concludes that the May 9, 2005 “Order Appointing Additional Surveyor” constitutes a modification of the April 6, 2004 final judgment.
See
 Maj. Op. at 7.  The majority reads the language giving surveyor Wilson the authority to assist surveyor Gilley and “reconfirm and verify [Gilley’s] work, calculations, placement, and monumentation” as beyond the proper scope of the April 6, 2004 final judgment and therefore void.  I disagree with this interpretation of the May 9, 2005 order.  I believe and would conclude that the order is valid because it gives the trial court a tool by which to determine whether surveyor Gilley’s work conforms to the trial court’s prior final judgment.  I do not believe it gives surveyor Wilson the unilateral authority to “trump” Gilley’s survey; it merely provides the trial court with a method of verifying the accuracy of the Gilley survey and monumentation.  For this reason, I would also hold that the trial court’s May 9, 2005 order properly enforced the trial court’s April 6, 2004 final judgment and fell within both the trial court’s duty to enforce under rule 308 and government code section 21.001(a) and its inherent authority to enforce its own judgment.
See

Tex. Gov’t Code Ann.
 § 21.001(a);
Tex. R. Civ. P.
 308
.

TERRIE LIVINGSTON

JUSTICE

DELIVERED:  December 12, 2005

FOOTNOTES
1:See
Tex. R. App. P.
47.4.

2:Denton County appealed from the corrected judgment, arguing that our opinion, judgment, and mandate in the first appeal did not address the entire boundary line.  We dismissed Denton County’s appeal for want of jurisdiction because the corrected judgment on remand merely satisfied the trial court’s ministerial duty to give effect to our mandate and was not reviewable.
Denton County v. Tarrant County
, 139 S.W.3d 22, 24 (Tex. App.—Fort Worth 2004, pet. denied).

3:It is not clear from the record that the General Land Office has accepted and approved the field notes and survey.

COMMENTS AND ANNOTATIONS
Comment 1:
Majority by Justice Gardner

Dissent by Justice Livingston


           Case: 16-16069   Date Filed: 07/25/2017   Page: 1 of 10

                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16069
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket Nos. 1:16-cv-00310-CB,
                         1:98-cr-00158-CB-M-1

JAMARR JOHNSON,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (July 25, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 16-16069     Date Filed: 07/25/2017   Page: 2 of 10

      Appellant Jamarr Johnson appeals the district court’s denial of his motion to

vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. On appeal,

Johnson asserts that the district court erred by determining that his conviction for

carjacking qualified as a crime of violence under 18 U.S.C. § 924(c)(3). After

careful review, we affirm.

I.    BACKGROUND

      In June 1998, Johnson and several codefendants were indicted in case

number 98-cr-00099 and Johnson was charged with: four counts of conspiracy to

commit carjacking, in violation of 18 U.S.C. § 371 (Counts 1, 4, 7, and 10); four

counts of carjacking, in violation 18 U.S.C. §§ 2119 and 2 (Counts 2, 5, 8, and 11);

and four counts of using and carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. §§ 924(c) and 2 (Counts 3, 6, 9, and 12). The

indictment stated that the 924(c) counts were based on robbery of an automobile,

in violation of § 2119.

      In August 1998, Johnson and two others were charged in case number 98-cr-

00158 with: conspiracy to commit carjacking, in violation of § 371 (Count 1);

carjacking, in violation of §§ 2119 and 2 (Count 2); and using and carrying a

firearm during and in relation to a crime of violence, in violation of §§ 924(c) and

2 (Count 3). The indictment alleged that the companion charge for the § 924(c)

count was robbery of an automobile, in violation of § 2119.

                                          2
              Case: 16-16069    Date Filed: 07/25/2017    Page: 3 of 10

      The indictments were consolidated for trial and a jury convicted Johnson on

all charges. The district court subsequently sentenced Johnson to 1,208 months’

imprisonment. This Court affirmed on appeal.

      In 2002, Johnson filed a § 2255 motion. Of relevance, Johnson argued that

the indictment was defective as to his § 924(c) convictions and that his attorney

was ineffective for failing to challenge the § 924(c) counts and sentences. The

district court denied the motion.

      In June 2016, Johnson filed an application in this Court for leave to file a

second or successive § 2255 motion, relying on the Supreme Court’s decision in

Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual

clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was

unconstitutionally vague. He argued that Johnson rendered the nearly identical

risk-of-force clause under § 924(c)(3)(B) unconstitutional, and that because his

sentence was based on § 924(c)(3)(B), his sentence violated his due process rights.

      We granted Johnson’s application for permission to file a second or

successive § 2255 motion. We determined that Johnson had made a prima facie

showing that his claim implicated the Supreme Court’s Johnson decision because it

was not clear which convictions were used to support his § 924(c) convictions or

whether conspiracy to commit carjacking could serve as a basis for a § 924(c)

conviction.

                                          3
              Case: 16-16069     Date Filed: 07/25/2017   Page: 4 of 10

      In the meantime, also in June 2016, Johnson filed a counseled § 2255 motion

in the district court. He argued that his § 924(c) convictions should be vacated

because carjacking did not qualify as a crime of violence under § 924(c)(3)(A), as

it could be violated without the use, attempted use, or threatened use of physical

force. Nor was carjacking a crime of violence under § 924(c)(3)(B)’s risk-of-force

clause because § 924(c)(3)(B) was unconstitutionally vague based on Johnson.

      The district court denied Johnson’s motion, noting that although the parties

had not addressed which convictions formed the basis for Johnson’s § 924(c)

convictions, it was confident Johnson’s § 924(c) convictions were based on

carjacking. The district court determined that Johnson’s argument that carjacking

was not a crime of violence under § 924(c)(3)(A)’s use-of-force clause was

rendered moot by this Court’s decision in In re Smith, 829 F.3d 1276, 1281 (11th

Cir. 2016). Because Johnson’s carjacking convictions met the requirements of the

use-of-force clause, the district court concluded that there was no reason to address

his argument that § 924(c)(3)(B)’s risk-of-force clause is unconstitutional.

Nevertheless, the district court granted Johnson a certificate of appealability on the

issue of whether carjacking is a crime of violence under § 924(c)(3). This appeal

followed.

                                          4
              Case: 16-16069     Date Filed: 07/25/2017   Page: 5 of 10

II.   DISCUSSION

      Johnson asserts that the district court erred by denying his § 2255 motion

because carjacking does not qualify as a crime of violence under § 924(c). In

particular, he argues that because the Supreme Court in Johnson held that the

residual clause of the ACCA, 18 U.S.C. § 924(e), is unconstitutionally vague, the

similar risk-of-force clause under § 924(c)(3)(B) is likewise void for vagueness.

      We review the legal issues pertaining to a § 2255 proceeding de novo and

factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004). The Supreme Court’s decision in Johnson did not address the statute

under which Johnson was convicted. Instead, it addressed the ACCA, which

provides that a person who violates 18 U.S.C. § 922(g) and has three prior

convictions for a violent felony or serious drug offense is subject to a 15-year

mandatory minimum sentence. 18 U.S.C. § 924(e)(1). The statute defines the

term violent felony as any crime that carries an imprisonment sentence of more

than one year that:

      (i) has as an element the use, attempted use, or threatened use of
      physical force against the person of another; or

      (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

18 U.S.C. § 924(e)(2)(B). “The first prong of this definition is referred to as the

‘elements clause,’ while the second prong contains the ‘enumerated crimes’ and,
                                          5
                Case: 16-16069   Date Filed: 07/25/2017    Page: 6 of 10

finally, what is commonly called the ‘residual clause.’” United States v. Ovalles, --

F.3d --, case no. 17-10172, manuscript op. at 11 (11th Cir. June 30, 2017). In

Johnson, the Supreme Court struck down the residual clause as unconstitutionally

vague. Johnson, 135 S. Ct. at 2563.

      At issue in the present case is Johnson’s conviction under 18 U.S.C.

§ 924(c). A person violates § 924(c) by using or carrying a firearm during and in

relation to, or by possessing a firearm in furtherance of, a drug trafficking crime or

a crime of violence. 18 U.S.C. § 924(c)(1)(A). The sentence imposed under

§ 924(c) must be served consecutively to any other sentence imposed. Id.

§ 924(c)(1)(A), (c)(1)(D)(ii).

      For purposes of § 924(c), the term crime of violence is defined as any felony

offense that:

            A) has as an element the use, attempted use, or threatened use
      of physical force against the person or property of another, or

            B) that by its nature, involves a substantial risk that physical
      force against the person or property of another may be used in the
      course of committing the offense.

18 U.S.C. § 924(c)(3). The former clause is often referred to as the “use-of-force”

clause or the “elements clause” and the latter clause is referred to as “risk-of-force”

clause. Ovalles, manuscript op. at 12 (explaining that although the latter clause is

often referred to as the residual clause, the name “risk-of-force” clause is more

                                           6
             Case: 16-16069     Date Filed: 07/25/2017   Page: 7 of 10

appropriate); In re Smith, 829 F.3d 1276, 1279–80 (11th Cir. 2016); In re Saint

Fleur, 824 F.3d 1337, 1339 (11th Cir. 2016).

      We recently held that the Supreme Court’s void-for-vagueness ruling in

Johnson does not invalidate § 924(c)(3)(B)’s risk-of-force clause. Ovalles,

manuscript op. at 17. In doing so, we joined the Second, Sixth, and Eighth

Circuits, all of which have held that Johnson does not apply to § 924(c)(3)(B). Id.

at 17, 20. We agreed with the reasoning of those courts that the “significant

differences” between the ACCA’s residual clause and the risk-of-force clause

under § 924(c)(3)(B) makes § 924(c)’s crime-of-violence definition more narrow

than the definition of violent felony under the ACCA. See Ovalles, manuscript op.

at 13–14, 17 (quoting United States v. Taylor, 814 F.3d 340, 376–77 (6th Cir.

2016)). We also agreed that unlike § 924(c), where courts are generally tasked

with “considering contemporaneous predicate federal crimes, often charged in the

same federal indictment,” the ACCA requires federal courts to consider a

defendant’s prior crimes, which are often unrelated to, and remote from, the instant

§ 922(g) firearm offense. Id. at 14–15.

      We also emphasized the functional differences between § 924(c) and the

ACCA, explaining that the ACCA is a recidivist sentencing enhancement and does

not require a nexus between the § 922(g) firearm offense and the predicate violent

felony. Id. Section 924(c), in contrast, requires a nexus between the § 924(c)

                                          7
              Case: 16-16069      Date Filed: 07/25/2017   Page: 8 of 10

firearm offense and the predicate crime of violence. Id. at 17–18. Further, section

924(c) has not presented the same interpretative difficulties as the ACCA’s

residual clause because: (1) section 924(c)’s requirement that the “use” of

“physical force” be used against the person or property of another in the course of

committing the offense is focused on whether the defendant himself uses force

while committing the offense, rather than on whether the defendant’s actions may

produce a potential risk of physical injury; (2) section 924(c)’s requirement that the

risk occur while the defendant is committing the offense places a temporal

restriction on the potential scope of the risk; and (3) section 924(c)(3)(B) does not

contain the list of enumerated crimes that preceded the ACCA’s residual clause

and therefore does not require courts to figure out the amount of risk necessary to

meet the statute. Id. at 18–20.

      Our decision in Ovalles forecloses Johnson’s argument that § 924(c)(3)(B)’s

risk-of-force clause is unconstitutionally vague. Of note, Johnson has not argued

that carjacking does not qualify as a crime of violence under § 924(c)(3)(B)’s risk-

of-force clause, only that the risk-of-force clause is void for vagueness. Because

Johnson does not extend to § 924(c)(3)(B)’s risk-of-force clause, we conclude that

the district court did not err by denying Johnson’s § 2255 motion. See Castillo v.

United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (“We may affirm on any

ground supported by the record.” (quotations omitted)).

                                           8
               Case: 16-16069       Date Filed: 07/25/2017      Page: 9 of 10

       Nevertheless, even if Johnson did render § 924(c)(3)(B)’s risk-of-force

clause invalid, Johnson’s carjacking conviction would still qualify as a crime of

violence under § 924(c)(3)(A)’s use-of-force clause. 1 See Ovalles, manuscript op.

at 22–26 (upholding the denial of prisoner’s § 2255 motion on the independent and

alternative ground that, even if Johnson invalidated the risk-of-force clause,

attempted carjacking qualified as a crime of violence under § 924(c)(3)(A)’s use-

of-force clause). The federal carjacking statute prohibits a person who “with the

intent to cause death or serious bodily harm takes a motor vehicle that has been

transported, shipped, or received in interstate or foreign commerce from the person

or presence of another by force and violence or by intimidation, or attempts to do

so.” 18 U.S.C. § 2119.

       As Johnson concedes, we have held in the context of an application for leave

to file a second or successive § 2255 motion that carjacking, pursuant to § 2119,

qualifies as a crime of violence under § 924(c)(3)(A)’s use-of-force clause. See In

re Smith, 829 F.3d at 1281. In In re Smith, we relied on our prior precedent in

United States v. Moore, 43 F.3d 568, 572–73 (11th Cir. 1995), to hold that “an

element requiring that one take or attempt to take by force and violence or by

intimidation, which is what the federal carjacking statute does, satisfies the [use-of-

1
  We note that Johnson’s argument that carjacking does not qualify as a crime of violence under
§ 924(c)(3)(A)’s use-of-force clause is arguably untimely under § 2255(f), as that claim is not
based on the newly recognized right announced by the Supreme Court in Johnson.

                                               9
               Case: 16-16069        Date Filed: 07/25/2017       Page: 10 of 10

force] clause of § 924(c), which requires the use, attempted use, or threatened use

of physical force.”2 In re Smith, 829 F.3d at 1280. We are bound by our decision

in In re Smith unless and until it is overruled by our Court sitting en banc or by the

Supreme Court. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th

Cir. 2008) (“Under the prior precedent rule, we are bound to follow a prior binding

precedent unless or until it is overruled by this court en banc or by the Supreme

Court.” (quotations omitted)).3

       Accordingly, the district court’s denial of Johnson’s § 2255 motion is

AFFIRMED.

2
  We note that other circuits have similarly held that a conviction under the federal carjacking
statute—18 U.S.C. § 2119—qualifies as a crime of violence under § 924(c)(3)(A)’s use-of-force
clause. See United States v. Jones, 854 F.3d 737, 740–41 (5th Cir. 2017); United States v.
Evans, 848 F.3d 242, 246–48 (4th Cir. 2017).
3
  Johnson argues for the first time on appeal that aiding and abetting carjacking does not qualify
as a crime of violence. However, he waived this argument by not raising it before the district
court. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th Cir. 2003) (declining to
consider federal prisoner’s argument raised for the first time on appeal of the denial of a § 2255
motion).
                                                10


821 F.2d 1388
Elva Jean McLEOD, Plaintiff-Appellant,v.Ray FECHTEL, Defendant-Appellee.
No. 86-3775.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 5, 1987.Decided July 13, 1987.

Alexander A. Wold, Eugene, Or., for plaintiff-appellant.
Richard A. Roseta, Eugene, Or., for defendant-appellee.
Appeal from the United States District Court for the District of Oregon.
Before KILKENNY, ANDERSON and NOONAN, Circuit Judges.
NOONAN, Circuit Judge:

1
Elva Jean McLeod appeals from judgment in her suit for malpractice against Ray Fechtel, a lawyer.  Jurisdiction is based on diversity of citizenship.  We affirm.

FACTS AND PROCEEDINGS

2
Elva Jean and Ian McLeod were married for sixteen years.  They lived in Oakland, California in a house that was Elva Jean's through a deceased husband and that Ian had helped fix up.  In 1975 when Elva Jean was 61 and Ian 62, he left her and moved to Elkton, Oregon.  He used all of his pension money to buy 14.34 acres on the Umpqua River and, for $3,000, built a house on the land.  In 1981 he brought dissolution proceedings against Elva Jean in Lane County, Oregon.

3
Elva Jean retained Seymour Rose of Oakland to represent her.  Rose in turn retained Ray Fechtel, a lawyer in Eugene, Oregon.  In July 1981 Rose informed Fechtel that "the major community asset" was the 14 acres in Oregon.  In 1982, before Fechtel had recorded a notice of lis pendens, Ian donated this property to the State of Oregon, retaining only permission to live on it as long as he lived.  At the time of this conveyance the property was worth $98,000.

4
Elva Jean obtained new counsel, Dwyer, Simpson and Wold, who represented her at the dissolution hearing in March 1984.  By this date Elva Jean was in poor health and completely disabled by diabetes and arthritis.  Her Social Security and SSI benefits totaled $497 a month;  Ian's totaled $524.  Each had household goods, clothing and personal effects.  Ian owned a 1977 Chevrolet Concours.  He was also believed to have a life insurance policy for which the annual premium was $664.  Dwyer, Simpson & Wold argued to Judge Maurice K. Merten, who heard the dissolution case, that Elva Jean should be made the irrevocable beneficiary of the insurance, be awarded spousal support of $200 per month for life, and be given her attorney's fees;  they also sought "other equitable relief."

5
Judge Merten ruled that Elva Jean was entitled to the Oakland property and Ian to nothing more;  he noted that Ian had used "marital funds" to buy the Oregon property and had then "dissipated" it.  Judge Merten denied spousal support because "their incomes are practically equal" and Ian had no other property.  The property on the Umpqua was "a nonexistent asset."    No evidence was offered on the life insurance policy.

6
Elva Jean did not appeal this decree.  She did file this suit against Ray Fechtel.  She alleged that his negligence had let Ian give away the major community asset.

7
By stipulation the case was heard before a magistrate.  He gave summary judgment for Fechtel.  Elva Jean appeals.

ANALYSIS

8
In an action for malpractice in Oregon, the plaintiff must prove the usual elements of violation of a duty, causation, and harm.   Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255, 1257 (1977).  As to causation, the question to be decided is what a reasonable judge would have decided if the case had been properly tried.  Id.  The question is one of law.

9
Oregon requires division of real property according to what "may be just and proper in all the circumstances."    ORS 107.105(f).  Generally, this equitable command results in an equal division of real property.   See, e.g., In re Marriage of Dietz, 271 Or. 445, 533 P.2d 783 (Or.1975).  The marital or nonmarital status of the realty is not decisive.  "[P]roperty may be subject to division whether or not it is a marital asset."   In re Marriage of Counts, 75 Or.App. 30, 704 P.2d 1157, 1158 (1985);  see also In re Marriage of Pierson, 294 Or. 117, 653 P.2d 1258, 1261 (1982).  "Separately owned premarital property ... may be included in formulating a property division."   In re Marriage of Frishkoff, 45 Or.App. 1033, 610 P.2d 831, 835 (1980);  see also Pierson, 653 P.2d at 1260-61 ("property owned prior to the marriage" subject to division).

10
A reasonable judge, therefore, would probably have given Ian a share in the Oakland property if he had not "dissipated" the Oregon property purchased with "marital funds."    At the very least Elva Jean has not presented evidence that a reasonable judge would not have struck the kind of balance that Judge Merten struck.  She has failed to show that the conveyance of the property on the Umpqua caused her loss.  As a matter of law she has failed to prove her malpractice claim.

11
Alternatively analyzed, Elva Jean's case falls because Elva Jean is estopped.  She had a fair and full opportunity to prove her entitlement to property in the dissolution hearing before Judge Merten.  She did not prove entitlement to the Oregon property, and she did not appeal.  She cannot relitigate the same issue now.   State Farm v. Century Home, 275 Or. 97, 103, 550 P.2d 1185, 1189 (1976).  The federal forum, bound to apply state law in this diversity case, is as closed to her as would be any court of the state of Oregon.

12
AFFIRMED.


956 A.2d 820 (2008)
181 Md. App. 477
Daniel Frank TURNER
v.
STATE of Maryland.
No. 2666 September Term, 2006.
Court of Special Appeals of Maryland.
September 10, 2008.
*821 Allison Pierce Brasseaux (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.
James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: KRAUSER, C.J., DAVIS and JAMES R. EYLER, JJ.
*822 DAVIS, Judge.
Daniel Frank Turner, appellant, was charged with driving under the influence of alcohol per se, driving under the influence of alcohol, driving while impaired by alcohol, failing to drive right of center and failing to obey a traffic device. On December 12, 2006, appellant was convicted by a jury in the Circuit Court for Calvert County of driving under the influence of alcohol per se. He was sentenced to sixty days imprisonment, with all but three weekends suspended. In addition, he received three years probation and was ordered to pay a $500 fine. In this timely appeal, he raises two issues, which we have rephrased as follows:
1. Whether the trial court committed plain error in instructing the jury on reasonable doubt.
2. Whether the docket entries must be amended to reflect that no disposition was reached as to driving while under the influence, driving while impaired, failing to drive right of center and driving an uninsured vehicle.
We shall affirm the judgment of the circuit court on the first issue and remand the case to the circuit court on the second issue with instructions to amend the docket entries to accurately reflect the disposition rendered at trial.

FACTUAL BACKGROUND
On February 26, 2006, Deputy Paul Wood observed appellant's vehicle speeding, weaving "sporadically" within his lane, traversing the center line by two to three feet on different occasions and veering onto the shoulder three times. Deputy Wood followed appellant's vehicle and pulled him over once he determined that it was safe to do so. When he approached, he smelled a "strong odor of alcohol" emanating from the vehicle and observed that appellant's eyes appeared "glassy" and that appellant's speech was slurred. Appellant told Deputy Wood that he was driving around searching for a reception site for his sister's wedding and that he had just departed from a local bar.
Various field sobriety tests were conducted and appellant was subsequently arrested. At the Sheriff's Department, Corporal Anthony Moschetto performed a breathalyzer test, utilizing the Intoximeter ECIR, which resulted in a reading of 0.152 grams of alcohol per 210 liters of breath and another sample reading of 0.150 grams of alcohol per 210 liters of breath.
According to the testimony of appellant and his father, appellant had attended his sister's wedding shower earlier that evening. He had arrived at the party at 5:00 p.m. and imbibed two glasses of wine and three beers throughout the course of the evening. At 9:00 p.m., appellant left the party with his parents and went to sleep around 10:15 p.m. Because appellant suffers from insomnia, he awoke at approximately 1:15 a.m. and went to the beach to locate prospective locations for his sister's rehearsal dinner. Appellant denied consuming any alcoholic beverages while out later that evening. He denied that the vehicle he was operating swerved, but explained that the road was curvy and that the officer's headlights were bright. He further explained that his behavior was due to an anxiety disorder for which he takes medication, Clomazepan, on a daily basis.
Additional facts will be provided as necessary.

ANALYSIS

I
Appellant first assigns error to the jury instruction regarding the reasonable doubt *823 standard propounded by the court. The court's instructions were in pertinent part as follows:
Just mention a couple of general jury instructions. The defendant is presumed to be innocent of the charges  charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty. The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove his innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty, nor is the State required to negate every conceivable circumstance of innocence. A reasonable doubt is a doubt founded upon reason. It is not a fanciful doubt, a whimsical doubt, or a capricious doubt. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant's guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.
(Emphasis added.) Compare Maryland Criminal Pattern Jury Instruction (MPJI-CR) 2:02 (2005 Supp.).[1]
Appellant argues that the circuit court erred in deviating from the pattern jury instruction, which no longer contains the language: "fanciful, whimsical or capricious." He notes that, according to the Comment to the Maryland Criminal Pattern Jury Instruction, this language was specifically omitted from the current reasonable doubt instruction when it was revised in 1999 in response to complaints that the language was confusing jurors. Appellant, therefore, contends that it is likely that the "inclusion of the now disfavored language misled and confused the jurors about the meaning of this critical concept."
The State preliminarily argues that appellant's assignment of error has not been properly preserved for appellate review and that, if appellant had objected at the time the instructions were propounded, the circuit court could have corrected any purported error. Appellant concedes that he did not object; however, he urges that this Court take cognizance of the plain error in the instructions that, he claims, were likely to unduly influence the jury *824 and thereby deprive him of his right to a fair trial. Because the reasonable doubt standard of proof is constitutionally mandated, in appellant's view, the magnitude of the error cannot be ignored.
The State counters that the court's instructions were neither material nor prejudicial and, therefore, the circumstances attendant here are not so egregious as to warrant plain error review. Rather, the State believes that any divergence in this case was "minor" as the court closely adhered to the pattern jury instruction, with the exception of adding that one obsolete sentence. The State, therefore, argues that the instruction could not have prejudicially impacted appellant.
To preserve an assignment of error in the giving of an instruction, a party must object "on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection." Md. Rule 4-325(e) (2008). Despite a party's failure to object, appellate courts possess plenary discretion, either on their own initiative or by request of a party, to recognize plain error in jury instructions. Md. Rule 4-325(e). Due to the numerous occasions on which we have been asked to review for plain error and the potential that granting such requests runs the risk of eroding the preservation requirement, we exercise that discretion only when the "`unobjected to error [is] compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.'" Brown v. State, 169 Md.App. 442, 457, 901 A.2d 846 (2006) (quoting Smith v. State, 64 Md. App. 625, 632, 498 A.2d 284 (1985), in turn quoting State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980)).
Appellant believes that this is one of those compelling instances because a proper explication of the reasonable doubt standard is an "indispensable component" of criminal proceedings and any deviation from the pattern jury instruction "was likely to have misled the jury." The Court of Appeals, in Ruffin v. State, 394 Md. 355, 906 A.2d 360 (2006), changed Maryland common law principles with regard to the toleration of deviations from the pattern jury instructions on the reasonable doubt standard.[2] In Ruffin, the trial judge modified the MPJI-CR 2:02 in three different instances. First, the judge instructed the jury that the presumption of innocence remains "until" the jurors believe it is overcome, rather than "unless" the jurors believe it is overcome. Ruffin, 394 Md. at 358, 361, 906 A.2d 360. Second, the trial judge, in defining reasonable doubt, employed the following language of the outdated version of the pattern instruction: "It's not a fanciful doubt, a whimsical doubt or a capricious doubt." Id. Lastly, the trial court instructed the jury that the defendant is presumed to be innocent, "just as every defendant who is tried in every courtroom in the United States of America in a criminal charge is." Id.
In its analysis, the Court began by reiterating that the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights, respectively, guarantee that the accused be convicted only upon proof beyond a reasonable *825 doubt and, therefore, the jury instruction on that standard is an essential component of every criminal proceeding. Id. at 363, 906 A.2d 360. Many judges, attorneys and legal scholars in Maryland, as well as other jurisdictions, have endorsed the use of pattern jury instructions on the reasonable doubt standard to ensure that a defendant's due process rights are protected and to create consistency and uniformity in jury trials. Id. at 366-67, 906 A.2d 360.[3] Appellate courts have regularly been faced with the issue of whether modified instructions on the reasonable doubt standard and presumption of innocence were erroneous. Id. at 371, 906 A.2d 360. To minimize the recurrence of this issue and to assure that instructions are consistent with the basic constitutional rights of the accused, the Ruffin Court held that trial courts are "required to instruct the jury on the presumption of innocence and the reasonable doubt standard of proof which closely adheres to MPJI-CR 2:02." Id. at 373, 906 A.2d 360 (emphasis added). "Deviations in substance will not be tolerated." Id.
As gleaned from Ruffin, a court is not required to provide a verbatim recitation of the Maryland Criminal Pattern Jury Instruction defining reasonable doubt, but must "closely adhere" to the language employed. In this case, the court did recite verbatim the language of the pattern jury instruction with one exception; it added the sentence contrasting a reasonable doubt to a "fanciful doubt, a whimsical doubt, or a capricious doubt," which is the language that appellant claims misled the jury. Prior to the revisions of the pattern instructions in 1999, the language at issue was used to define the reasonable doubt standard. Although the language was later omitted from the pattern jury instruction, it was done so, not because it is erroneous, but in response to complaints by practitioners that it was confusing jurors. See Comment to MPJI-CR 2:02. Because use of that language is technically correct, the circuit court's use of that language, even after the legislature's revisions to the pattern instructions, did not alter the State's substantial burden of proof. Furthermore, even with the inclusion of that language, the circuit court substantially adhered to the current version of the pattern jury instruction, thereby complying with the principles espoused in Ruffin. In the exercise of our plenary authority, we do not deem the addition of the one sentence to be error, much less plain error.

II
Appellant was charged by citation with five offenses: (1) driving under the influence of alcohol per se, (2) driving under the influence of alcohol, (3) driving while impaired by alcohol, (4) failing to drive right of center and (5) failing to obey a traffic device. Charges number one, two and three were submitted to the jury, while the remaining two offenses were not. Of the three charges submitted to the jury, the court instructed the jury that, if it reached a guilty verdict on the driving under the influence per se charge, it need *826 not proceed to determine guilt as to driving under the influence of alcohol and driving while impaired by alcohol. Conversely, if it reached a not guilty verdict on driving under the influence per se, the court instructed the jury to proceed to determine guilt on the other two alcohol-related driving offenses.
Pursuant to the court's instructions, the jury convicted appellant of driving under the influence per se. The docket entries, however, indicate that appellant was convicted of driving under the influence per se as well as driving under the influence of alcohol, driving while impaired, failing to drive right of center and driving an uninsured vehicle.[4] The docket entries specifically indicate that these additional charges were merged on the day of sentencing.
Because the jury never convicted appellant of these additional offenses, he requests this Court to order the docket entries amended. In support thereof, he argues that it is incorrect for the docket entries to indicate that the charges were merged because the term merged "does not indicate that no verdict was taken or that charges were not submitted to the jury." "Merged,"[5] according to appellant, indicates that the jury found him guilty of the offenses and that the court merged the convictions under the required evidence test or, alternatively, merged the sentences under the rule of lenity. Thus, appellant contends that the docket entries are clearly erroneous and may potentially have a negative impact on him in the future if he is later convicted of any traffic offense since many traffic violations impose harsher penalties on subsequent offenders.
The State concedes that, with respect to failure to drive right of center and driving an uninsured vehicle, neither of those charges were alleged in the citation, pursued by the State, nor resolved by the jury. Thus, the State agrees that the docket entries should be amended accordingly. However, with regard to the docket entries for driving under the influence of alcohol and driving while impaired by alcohol  the remaining two alcohol-related driving offenses  the State argues that this claim is unpreserved and, even if it had been preserved, the State claims that these two charges merged with the "per se" conviction.
Appellant responds that, because docket entries are made after trial and after sentencing, he could not have known that the disposition of the charges would be entered erroneously and he further argues that "it would be completely unfair to hold that his failure to object to them at that time waived the issue for purposes of appeal." Pursuant to Maryland Rule 8-131(a), "[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court...." Expounding on the qualifier, "ordinarily," the Rule goes on to state, "... but the court may decide such an issue if necessary or desirable to guide the trial court to avoid the expense and delay of another *827 appeal." We believe that the preservation of the integrity of the record of the lower court proceedings is such an issue that should be addressed on this appeal, notwithstanding that it was not decided below.
As to the State's argument that the two remaining alcohol-related offenses merged, appellant's response is two-fold. Appellant first argues that the jury, pursuant to the court's instructions, did not proceed to render a verdict on those two charges because it found appellant guilty of driving under the influence per se, leaving nothing for the court to merge. Appellant's second argument is that, even if a disposition had been reached, the two offenses would not merge under the required evidence test and their respective sentences would not merge under the rule of lenity.
Under the required evidence test, if all of the elements of one offense are included in the other so that only the latter offense contains a distinct element, the former merges into the latter. McGrath v. State, 356 Md. 20, 23-24, 736 A.2d 1067 (1999). If each offense requires proof of a fact or an element that the other does not, there is no merger under the required evidence test. Id. However, even when two offenses are separate under the required evidence test, there may still be merger under the rule of lenity. Id. at 25, 736 A.2d 1067. "The rule of lenity, applicable to statutory offenses only, provides that where there is no indication that the legislature intended multiple punishments for the same act, a court will not impose multiple punishments but will, for sentencing purposes, merge one offense into the other." Id. Under the rule of lenity, the offense carrying the lesser maximum penalty will merge into the offense carrying the greater maximum penalty. Id.
To determine whether driving under the influence of alcohol and driving while impaired by alcohol would merge with the conviction of driving under the influence per se, a comparison of their respective elements is necessary. The Court of Appeals, in Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001), reviewed the legislative history in enacting the "per se" law and, in doing so, compared the various alcohol-related driving offenses. At the time that Meanor was decided, the nomenclature for alcohol-related driving offenses slightly differed from the statutory terms used today. See Comment to MPJI-Cr 4:10 (2003 Supp.). In 2001, the Maryland General Assembly redefined these offenses and, under the new scheme, the offense, formerly called "driving while intoxicated" (DWI), is now called "driving under the influence of alcohol" (DUI). Id. Likewise, the offense, formerly called "driving under the influence of alcohol" (DUI), is now called "driving while impaired" (DWI). Id. These changes do not effect the Meanor holding, but are relevant to understanding how the terminology used in Meanor relates to the current lexicon. For example, Meanor refers to the offense of "driving while intoxicated per se," which today is known as "driving under the influence per se." To avoid confusion, we shall substitute the current lexicon when discussing the corresponding offenses in Meanor.
In Meanor, the Court held that driving under the influence per se is not a lesser included offense of driving under the influence. 364 Md. at 526, 774 A.2d 394. "It is a separate offense, as both driving [under the influence] and driving [under the influence per se] each have an element not found in the other." Id. In reaching that decision, Meanor reviewed the legislative intent behind the enactment of the criminal per se law in 1995, finding ample evidence in the Committee and Floor Reports that the per se law was intended to supplement *828 the existing prohibitions. Id. at 519-24, 774 A.2d 394.
In addition to the legislative intent, it is clear from the elements of each of the offenses that they are not the same crimes. See id. at 523-24, 774 A.2d 394. All three offenses are found in separate subsections of § 21-902 of the Transportation Article of the Maryland Code. Section 21-902(a)(1) prohibits a person from driving while under the influence of alcohol, subsection (a)(2) prohibits an individual from driving while under the influence of alcohol per se and, finally, subsection (b)(1) prohibits a person from driving while impaired by alcohol. Md.Code Ann. (2001, 2008 Repl.Vol.), Transp. § 21-902.
The designated pattern jury instructions, drafted by the Maryland State Bar Association Standing Committee on Pattern Jury Instructions, provides that, if the defendant is charged with the crimes of driving under the influence of alcohol and driving while impaired by alcohol, the State must prove:
(1) that the defendant drove, operated, or moved a vehicle [or was in actual physical control of a vehicle]; and
(2) that, at the time, the defendant was either under the influence of alcohol or impaired by alcohol.
MPJI-CR 4:10. The pattern instruction describes the distinction between "under the influence" and "while impaired" as being one of degree. Id. Driving "under the influence" is the more serious of the two offenses and requires that the alcohol that the person has consumed has "substantially impaired the person's normal coordination." Id. By contrast, driving "while impaired" requires that the alcohol that the person has consumed "has impaired normal coordination to some extent." Id. Driving under the influence of alcohol per se,[6] on the other hand, requires that the person take a test that shows the blood alcohol level to be 0.08 or more. MPJI-CR 4:10.3 (2003 Supp.).
MPJI-CR 4:10.3 (Driving under the Influence of Alcohol Per Se) Notes on Use provides that, "[i]f the defendant is charged with (1) driving under the influence of alcohol and driving while impaired by alcohol, and (2) driving under the influence of alcohol per se," as appellant was in this case,
the Court should (1) give MPJI-Cr 4:10 (Driving under the Influence of Alcohol and Driving While Impaired By Alcohol), (2) give MPJI-Cr 4:10.3 (Driving under the Influence of Alcohol Per Se), and (3) give a verdict sheet that includes both driving under the influence of alcohol and driving under the influence of alcohol per se as separate offenses. See Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001); Md. Cts. & Jud. Proc.Code Ann. § 10-307(g) (2002).
The State's contention that the trial court's instruction to the jury that it should not proceed to reach a verdict on the remaining two charges is evidence that the trial court merged the offenses is without merit. First and foremost, all three offenses are separate and distinct and neither the offense of driving under the influence of alcohol or driving while impaired by alcohol merge into driving under the influence of alcohol per se under the required evidence test. Therefore, the trial court should not have instructed the jury to disregard the remaining charges after determining guilt on the criminal per se charge. Finally, because there was no disposition rendered on either of those two remaining offenses, pursuant to the court's *829 instructions, there was nothing to merge at sentencing under the rule of lenity.
Thus, there is a discrepancy between the disposition at trial and the docket entries, which must be reconciled. When there is such a discrepancy between the transcript and the docket entries, absent any evidence that there is error in the transcript, the transcript controls. Carey v. Chessie Computer Servs., Inc., 369 Md. 741, 748, 802 A.2d 1060 (2002). Because the docket entries do not reflect the proceedings as recorded in the transcript, the proper court to correct any error in the docket entries is the court in which the error occurred. See Roberts v. State, 219 Md. 485, 488, 150 A.2d 448 (1959). We therefore remand to the circuit court so that it may correct these errors. We do so with instructions to amend the docket entries related to driving under the influence of alcohol, driving while impaired by alcohol, failing to drive right of center and failing to obey a traffic device. Our decision, however, does not affect the conviction as to driving under the influence of alcohol per se.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART. CASE REMANDED TO CIRCUIT COURT FOR CALVERT COUNTY WITH INSTRUCTIONS TO AMEND THE DOCKET ENTRIES TO REFLECT THAT NO JURY VERDICT WAS TAKEN AND DRIVING UNDER THE INFLUENCE OF ALCOHOL AND DRIVING WHILE IMPAIRED BY ALCOHOL DO NOT MERGE INTO THE CONVICTION FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL PER SE.
COSTS TO BE PAID ONE-HALF BY APPELLANT AND ONE-HALF BY CALVERT COUNTY.
NOTES
[1]  The pattern jury instruction on the presumption of innocence and reasonable doubt reads as follows:

The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his][her] innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence.
A reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. How ever, if you are not satisfied of the defendant's guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.
[2]  The Court of Appeals specifically declared its intention that the Ruffin decision "represents a change in a Maryland common law principle and not an overruling of prior cases on the ground that they were erroneously decided." 394 Md. at 373, 906 A.2d 360. Consequently, the Court held that Ruffin was entitled to the benefit of that holding, but, otherwise, "the holding shall be applied only prospectively." Id. The Ruffin decision was handed down on August 31, 2006. Appellant was tried and convicted on December 12, 2006. Therefore, Ruffin is applicable.
[3]  See Miller v. State, 380 Md. 1, 30, 843 A.2d 803 (2004) (stating that the concurring opinion in Wills v. State, 329 Md. 370, 620 A.2d 295 (1993) "wisely suggested that trial judges `closely adhere' to MPJI-CR 2:02 when attempting to define `reasonable doubt'"); Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997); Wills, 329 Md. 370, 620 A.2d 295 (1993) (concurring opinion); Himple v. State, 101 Md.App. 579, 584-85, 647 A.2d 1240 (1994). See also Arizona v. Portillo, 182 Ariz. 592, 898 P.2d 970, 974 (1995) (holding that, "in every criminal case trial courts shall give the reasonable doubt instruction" set forth by the court).
[4]  Appellant notes that, on the citation, a portion of the circle drawn by the issuing officer around the failure to obey a traffic device charge inadvertently encircled the charge listed directly above it, driving an uninsured vehicle.
[5]  The term "merger" in the context of criminal law is defined as "[t]he absorption of a lesser included offense into a more serious offense when a person is charged with both crimes, so that the person is not subject to double jeopardy." Black's Law Dictionary, Eighth Edition, 2004. For example, "a defendant cannot be convicted of both attempt (or solicitation) and the completed crime  though merger does not apply to conspiracy and the completed crime." Id.
[6]  "Under the influence of alcohol per se" means "having an alcohol concentration at the time of testing of 0.08 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." Md.Code Ann. (2001, 2008 Repl. Vol.), Transp. § 11-174.1(a).