Appeal from the United States District Court for the Southern District of Illinois. No. 05-CR-40065-JPG-J. Phil Gilbert, Judge. Petition for Writ of Mandamus to the United States District Court for the Southern District of Illinois. No. 05-CR-40065-JPG-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before FLAUM, WOOD, and EVANS, Circuit Judges.
Unsure of the proper procedural vehicle to use, the Government has brought this case before us using two alternatives: an interlocutory appeal (No. 07-2304) and a petition for a writ of mandamus (No. 07-2674). We conclude that appellate jurisdiction under 18 U.S.C. § 3731 is problematic, since the district court did not issue any of the orders described by that statute. We conclude, however, that this is one of those rare cases in which a writ of mandamus should issue. We therefore reserve for another day the question whether we might have been able to accept this type of case as an ordinary interlocutory appeal.
Jerry Vinyard entered an "open plea" to charges of manufacturing, distributing, and possessing with intent to distribute methamphetamine. See 18 U.S.C. §§ 841(a)(1) and 846. He stipulated that he had a prior felony drug conviction (from 1984) and also that the conspiracy this time around involved more than 500 grams-a fact that increased his mandatory minimum sentence to 240 months.
At sentencing on May 3, 2007, no one had any objections to the presentence report (PSR), which recommended a guideline range of 235-293 months' imprisonment, based on a finding that Vinyard was involved with 36.5 kilograms of methamphetamine and had possessed a firearm during the offense. Before imposing the sentence, the district court agreed to allow Vinyard's wife to address the court. She spoke for some time, emphasizing the effect that a long sentence would have on their 11-year-old daughter. After his wife spoke, Vinyard for the first time questioned some of the facts in the PSR having to do with amounts of anhydrous ammonia involved in the crime. The district court asked him if he was objecting to the PSR. Vinyard waffled, seeming to say yes, but noting that he was not acting on the advice of counsel, who was concerned about Vinyard's jeopardizing his three-level reduction for acceptance of responsibility and other benefits he was expecting. After a brief recess, Vinyard withdrew any objections, and the district court sentenced him to the mandatory minimum of 240 months.
At this point, the district court appears to have had second thoughts. The next day, May 4, without giving any notice to the Government, he ordered Vinyard's release. This caused problems because the order was not filed until May 7; the Government learned of Vinyard's release only when an agent happened to see him walking into the Probation Office. The Government immediately filed a notice of appeal of the release order on May 7 (No. 07-2058), and on May 10 it filed a motion to reverse and vacate the release order. That same day (May 10), this court entered an order requiring Vinyard to be detained. The district court responded hours later by sua sponte vacating Vinyard's plea and sentence, ordering new appointed counsel, vacating its release order, and ordering Vinyard to self-report the next day. This court issued another order reiterating the immediate detention order. The Government filed an appeal of the May 10 order vacating the plea and sentence (No. 07-2304). The appeal of the release order was dismissed on the ground that it had become moot.
Along with its appeal of the vacatur, the Government filed a motion to stay the proceedings with both the district court and the circuit on June 5. On June 13, one day before the next scheduled status hearing, the district court granted the motion to stay and amplified on its reasons for vacating the plea and sentence. On July 17, the Government filed a petition for a writ of mandamus to compel the district court to reinstate the sentence it had pronounced (No. 07-2674).
On August 6, this court ordered briefing on the question whether the direct appeal "should proceed only in the related Petition for Mandamus relief" under United States v. Spilotro, 884 F.2d 1003 (7th Cir. 1989). On November 5, the direct appeal and the mandamus petition were consolidated for oral argument and disposition.
Mandamus is an extraordinary remedy, "issued only in extraordinary cases." In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1294 (7th Cir. 1995). There are two conditions for issuing a writ of mandamus:
The first is that the challenged order not be effectively reviewable at the end of the case-in other words, that it inflict irreparable harm. . . . The petitioner must ordinarily demonstrate that something about the order, or its circumstances, would make an end-of-case appeal ineffectual or leave legitimate interests unduly at risk. . . . Second, the order must so far exceed the proper bounds of judicial discretion as to be legitimately considered usurpative in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous.
Id. at 1295 (quotations and citations omitted). In addition, we normally will reject a petition for a writ of mandamus if the requesting party has an adequate remedy at law. We believe that ...