Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Nos. 98 CR 47, 00 CR 93, 02 CR 103, and 98 CR 145-Rudy Lozano, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before KANNE, SYKES, and TINDER, Circuit Judges.
This case involves the consolidated appeals of Francis Lawrence, Anthony Jackson, David Anderson, and Leon Johnson, who filed motions with the district court to reduce their sentences under the retroactive sentencing guideline reductions for crack cocaine offenses. The court granted the defendants' motions and reduced their sentences according to the guidelines, but the court also, apparently inadvertently, included language in the orders that converted each sentence into "time served." Within a few weeks, the court recognized the error and entered modifications to correct the language. Accordingly, the defendants are challenging the district court's authority to substantively modify their sentences outside of the seven-day window permitted by Federal Rule of Criminal Procedure 35.
In order to decrease the disparity between sentences for crack cocaine offenses and powder cocaine offenses, the United States Sentencing Commission reduced the penalties for crack cocaine offenses by amending the sentencing guidelines in 2007. The Commission also voted to make the changes to the guidelines retroactive, effective March 3, 2008. The amendment to the guidelines generally results in a base offense level of two levels less than the original offense level. See U.S.S.G. app. C, amend. 706.
A district court has the authority under 18 U.S.C. § 3582(c)(2) to modify a defendant's sentence where the sentence included a term of imprisonment based on a sentencing range that was subsequently lowered by the Commission. Lawrence, Jackson, Anderson, and Johnson were sentenced for crack cocaine offenses prior to the amendment of the guidelines. Each defendant filed a motion for a reduction under § 3582(c)(2). Lawrence had originally been sentenced to 188 months' imprisonment, and his motion asked the court to reduce his sentence to 151 months. Jackson had originally been sentenced to 151 months' imprisonment, and his motion asked the court to reduce his sentence to 121 months. Anderson had originally been sentenced to 97 months' imprisonment, and his motion asked the court to reduce his sentence to 78 months. Johnson had originally been sentenced to 151 months' imprisonment, and his motion asked the court to reduce his sentence to 61 months. The government filed a response to each motion and agreed that the calculations proposed by Lawrence, Jackson, and Anderson were appropriate. The government disagreed with Johnson's calculation and proposed that 120 months should be required because Johnson was subject to a mandatory minimum sentence of 10 years; Johnson filed a response and agreed that the government's calculation was proper.
The district court granted Johnson's motion in an order on March 4, 2008. The court granted Lawrence's and Anderson's motions in orders on March 6, 2008. The court granted Jackson's motion in an order on March 13, 2008. Each order reduced the sentence to the number of months agreed upon by the parties and contained an effective date of ten days after the order date. Each order also included the following language: "If this sentence exceeds the amount of time the defendant has already served, the sentence is reduced to a 'Time Served' sentence" (emphasis added). On March 26, 2008, the district court entered an order in each defendant's case stating that the previous order contained a clerical error that was being corrected. It then entered an order for each defendant amending the prior order: "If this sentence is less than the amount of time the defendant has already served, the sentence is reduced to a 'Time Served' sentence" (emphasis added).
We review a challenge to the district court's authority to modify a sentence de novo. United States v. Daddino, 5 F.3d 262, 264 (7th Cir. 1993). A district court may correct within seven days the imposition of a sentence that contained an "arithmetical, technical, or other clear error." Fed. R. Crim. P. 35(a); see also United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008); Daddino, 5 F.3d at 265. It is clear that the court's inclusion of the language converting the sentences to "time served" was inadvertent.*fn1 The government concedes that the corrections were made more than seven days after the orders were entered. We consider, however, whether the court's use of an "effective date" ten days after the order was entered extended the amount of time the court had to correct the error; if so, the correction of Jackson's sentence was timely. (The modifications of the other defendants' sentences would be untimely as of either date.)
Rule 35(a) applies within seven days "after sentencing." The rule defines "sentencing" as the "oral announcement of the sentence." Fed. R. Crim. P. 35(c). The definition was added to Rule 35 in 2004 to resolve a circuit split as to whether the imposition of a sentence occurred at the oral sentencing or upon the entering of the written judgment by the court. See Fed. R. Crim. P. 35(c) advisory committee's note (explaining the need for a definition of "sentencing"); United States v. Wisch, 275 F.3d 620, 626 (7th Cir. 2001) (describing circuit split). Here, the court did not hold hearings or make oral announcements when granting the defendants' motions to reduce their sentences. We conclude that the sentences were imposed and the seven-day periods began when the written orders were entered, and so the modifications by the court were untimely for all four defendants under Rule 35(a).
Rule 36 provides an exception that allows a court to correct a "clerical error" in an order at any time, see McHugh, 528 F.3d at 540; Daddino, 5 F.3d at 264, and the court here characterized the language in its order as containing such an error. Rule 36 is limited, however, to errors that are truly clerical in nature; it cannot be used to fix "judicial gaffes." See McHugh, 528 F.3d at 540.
We have previously considered the scope of Rule 36 on several occasions. In Daddino,the district court's written sentencing order omitted payment of costs of incarceration and supervision, but the court amended the written order to include those costs two months later. We held that the omission of those costs stemmed from an oversight of the court itself and, therefore, the correction was not permitted by Rule 36. Daddino,5 F.3d at 265. In United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006), the court revoked the defendant's two concurrent terms of supervised release and ordered imprisonment followed by additional supervised release. The court referred to the additional supervised release as "a term" and did not specify orally or in writing that the supervised release was for two concurrent terms. The court later revoked the defendant's second supervised release and ordered the defendant to be imprisoned for two consecutive terms. We noted that Rule 36 could not be used to correct the prior erroneous imposition of a single term of supervised release, and we held, therefore, that the court lacked the authority to re-sentence the defendant to two consecutive terms of imprisonment. Id. at 934-35. In McHugh,the court orally sentenced the defendant and recommended to the Bureau of Prisons that the defendant be afforded the opportunity to participate in substance abuse education and treatment programs. The written order included the oral recommendation but limited the recommendation to programs "which do not include an early release." While the recommendation was being appealed, a different judge at the district court modified the order to remove the additional words upon the pro se motion of the defendant. We held that the district court lacked the authority to make the change for several reasons, including that Rule 36 was inapplicable where nothing in the record indicated that the additional limitation in the written order had been added without the original judge's knowledge or approval. McHugh,528 F.3d at 540. Other circuits have reached similar conclusions. See, e.g., United States v. Penson,526 F.3d 331, 335 (6th Cir. 2008) (rejecting use of Rule 36 where the court inadvertently orally sentenced the defendant to three concurrent terms of 310 months and later corrected it in a written order to two concurrent terms of 240 months and one consecutive term of 70 months); United States v. Guevremont,829 F.2d 423, 426 (3d Cir. 1987) (rejecting use of Rule 36 where the court failed to announce that the defendant was placed on probation but later corrected it in a written order).
Here, the district court modified the sentence by substituting the words "is less than" ...