Judges: St__Eve
Filed: Oct. 18, 2021
Latest Update: Oct. 19, 2021
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-2089 & 21-2090
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID MCCLAIN,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
Nos. 02-CR-10145 & 09-CR-20090 — Michael M. Mihm, Judge.
____________________
ARGUED OCTOBER 5, 2021 — DECIDED OCTOBER 18, 2021
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. The district court modified David
McClain’s two federal prison sentences under Rule 36 of the
Federal Rules of Criminal Procedure, and McClain appeals.
He contends that the changes—which added 18 months of
prison time and required him to re-enter federal prison after
he had been released—were not merely clerical. As a result,
he argues, they could have been made only under Federal
Rule of Criminal Procedure 35. But that avenue for
2 Nos. 21-2089 & 21-2090
modification was unavailable because the fourteen-day pe-
riod for altering a sentence had long passed. The government
argues that because of clerical errors, the written judgments
did not reflect what was orally pronounced at a 2013 resen-
tencing hearing and therefore required a mere clerical “cor-
rection” pursuant to Federal Rule of Criminal Procedure 36.
McClain is correct that the changes to his sentences were
not merely clerical, and so the district court erred by “correct-
ing” the sentences under Rule 36. We agree and vacate both
amended judgments. We have already ordered McClain’s re-
lease and now explain our reasoning in greater detail.
I
In 2012, McClain pleaded guilty to distributing cocaine, 21
U.S.C. § 841(a)(1), and to violating the conditions of his super-
vised release on a prior federal conviction for delivery of a
controlled substance by committing a new offense while on
supervision. Around the same time, he was sentenced in state
court to 20 years for failure to report an accident involving a
death after fleeing the scene.
The district court sentenced McClain simultaneously on
his new conviction and supervised release violation. It im-
posed a 120-month prison term in the distribution case. Of
that, 24 months were to be served concurrent to the state sen-
tence and the remaining 96 months consecutive to it. In his
delivery case, the court imposed a sentence of 24 months con-
secutive to both the distribution and state sentences.
Since the 2012 sentencing, the court has modified these
sentences multiple times. It modified the distribution sen-
tence in 2013, 2016, and twice in 2021; it modified the delivery
sentence in 2013 and 2021.
Nos. 21-2089 & 21-2090 3
The first modification came in 2013. After the Supreme
Court’s decision in Dorsey v. United States, 567 U.S. 260 (2012),
this court granted a joint motion to vacate the sentence in
McClain’s distribution case. Arguing that his delivery sen-
tence was part of the same sentencing package, McClain suc-
cessfully moved to have it vacated as well. At the resentenc-
ing hearing, the district court sentenced McClain to 90 months
in federal prison and stated that 72 months were for the dis-
tribution conviction and 18 months were for the revocation in
the delivery case. Of those 90 months, the court explained, 24
were to run concurrently with the state sentence, leaving 66
months of federal time after the state sentence. The written
judgments, however, did not conform to the orally pro-
nounced sentences. They stated that 24 months of the distri-
bution sentence—as well as the entire 18-month delivery sen-
tence—were to run concurrent to the state sentence. Thus,
McClain received 42 months of concurrent time, and only 48
months of purely federal time rather than the intended 66
months.
Another modification occurred in 2016. Following
Amendment 782 to the Sentencing Guidelines, McClain suc-
cessfully obtained a reduction in his distribution sentence un-
der 18 U.S.C. § 3582(c)(2). The court reduced that sentence to
70 months, specifying that it would run concurrent to the de-
livery sentence, that 24 months would run concurrent to the
state sentence, and that 48 months would run consecutive to
it. This new sentence created two discrepancies. First, the
court ordered the two federal sentences to run concurrently,
but the unchanged judgment in the delivery case still ordered
that the two run consecutively. Second, the arithmetic was
wrong: 24 months concurrent to the state sentence and 48
4 Nos. 21-2089 & 21-2090
months consecutive to it add up to 72 months, not the 70
months that the court had imposed.
The third modification, in February 2021, corrected the
2016 errors. After noticing the mathematical error in the dis-
tribution sentence, the parties jointly proposed a revised sen-
tence. The revised judgment, adopted in February 2021, im-
posed 70 months in prison to be served consecutive to the de-
livery sentence, and corrected the mathematical errors rela-
tive to the state sentence. (Whether the court had the authority
to make these changes is beyond the scope of this appeal.)
McClain was scheduled to be released in June 2021. The
Bureau of Prisons transferred him to home confinement in
April 2021. He moved in with his family and secured employ-
ment. Meanwhile, in mid-March, the government in each case
filed a motion under Rule 36, which permits the court at any
time to correct clerical errors in a judgment. It cited a pur-
ported discrepancy between the sentence orally announced in
2013 and McClain’s new release date and argued that the sen-
tences should be “corrected” so that McClain would serve 64
months total after his state sentence.
McClain objected to the motions. He argued that, for the
distribution sentence, the discrepancies between the February
2021 amended judgment and the pronounced judgment from
2013 were not revisable under Rule 36 because the court had
modified the 2013 oral judgment twice since that hearing. As
for the revocation sentence in the delivery case, he argued
there was no inconsistency with the 2013 oral pronounce-
ment. Because the proposed changes were more than clerical,
he asserted only Rule 35 would allow modification, and its
fourteen-day time limit had long passed. McClain pointed out
that the proposed modifications were substantial and would
Nos. 21-2089 & 21-2090 5
harm him by leading to his reincarceration after he had al-
ready been released and started working.
The district court granted the motions. It concluded that it
had authority to modify the sentences under Rule 36 because
clerical errors had caused the written sentences to diverge
from those stated at the hearing. It entered an amended judg-
ment in the distribution case that sentenced McClain to 70
months in prison, running 24 months concurrent with and 46
months consecutive to the state sentence. Notably, the latest
judgment made no reference to the delivery case. In the deliv-
ery case, the court entered an amended judgment sentencing
McClain to 18 months consecutive to the distribution sentence
and making no reference to the state case. As a result of the
amended judgments, McClain was sent back to prison to
serve 18 additional months.
II
On appeal, McClain contends that the district court lacked
authority to modify his sentences under Rule 36. This court
reviews legal questions, including questions of rule interpre-
tation, de novo. United States v. Melvin, 948 F.3d 848, 851 (7th
Cir. 2020).
McClain first attacks the May 2021 sentence modifications
by arguing that the government’s motions to alter his sen-
tences, although styled as requests for Rule 36 corrections, are
best understood as untimely motions under Federal Rule of
Criminal Procedure 35. He argues that the modifications
amounted to corrections of clear error under Rule 35, for
which the fourteen-day time limit has long expired, and not
corrections of clerical errors under Rule 36 which can be in-
voked “at any time.”
6 Nos. 21-2089 & 21-2090
An inconsistency between an oral pronouncement and the
written sentence is a clerical error within the scope of Rule 36.
United States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir. 2015).
When a written judgment fails to reflect an “unambiguous
oral pronouncement, Rule 36 allows for correction of such a
clerical error at any time.”
Id. The district court here found
that the judgment it entered in February of 2021 did not reflect
the oral pronouncement of the sentence imposed. (There was
no “oral pronouncement” in February 2021, so presumably
the court was referring to the 2013 resentencing hearing.) The
government insists that the court correctly observed that, if
the sentences as of February 2021 were left to stand, McClain
would be released after serving only 48 months of imprison-
ment consecutive to his state sentence, rather than the orally
pronounced sentence of 64 months. That point has some
truth, but it does not necessarily make either sentence ripe for
correction under Rule 36.
For the distribution sentence, the problem with the gov-
ernment’s argument is that the change to McClain’s sentences
did not result in his May 2021 sentence conforming to the 2013
oral pronouncement: for McClain to serve 66 months total of
federal time after the state sentence. That was not the sentence
the court imposed with the May 2021 modifications. In a sin-
gle step, the district court imposed the 66 months from 2013
and subtracted the 2 months from the 2016 guidelines-based
reduction. The district court treated this as an unremarkable
simplification, but to get there, it had to simultaneously dis-
card and incorporate the 2016 and February 2021 modifica-
tions. It treated the oral 2013 sentence as the one true sentence,
but it still incorporated adjustments that came years later.
Nos. 21-2089 & 21-2090 7
Recognizing that focusing on the 2013 pronouncement
means ignoring some portions of the modifications from 2016
and 2021, the government argues that those written modifica-
tions can be discarded. First, it contends that the subsequent
written sentences are nullities to the extent they conflict with
the oral pronouncement. The government points to the anal-
ysis in Medina-Mora and United States v. Alburay, 415 F.3d 782
(7th Cir. 2005), both cases in which a written order that was
inconsistent with an oral pronouncement had to be revised.
But the uncontroversial proposition that an oral pronounce-
ment controls when the corresponding written judgment dif-
fers is not useful here, when (1) multiple changes to the sen-
tence were made without further oral pronouncements, and
(2) the written judgment under attack does not correspond to
the only oral pronouncement. The government fails to explain
why the 2013 oral pronouncement remains the reference point
even though it was later modified twice—once with the gov-
ernment’s agreement and once with no objection.
Second, the government argues that the post-2013 sen-
tences can be ignored because the 2016 and 2021 reductions
resulted in a sentence below McClain’s retroactively amended
guideline range, and the district court did not have the au-
thority for that under § 3582(c)(2). But if an order “accurately
reflects the judge’s decision” it “cannot be corrected” even if
“the sentence was erroneous.” United States v. Eskridge,
445 F.3d 930, 934 (7th Cir. 2006). For example, in Romandine v.
United States,
206 F.3d 731, 737 (7th Cir. 2000), prompted by
the timely appeal of one unlawful resentencing, we reinstated
a previous “unlawful” sentence because it had not been
timely appealed and could not be modified beyond the time
limit of Rule 35.
8 Nos. 21-2089 & 21-2090
Here, the February 2021 written sentence, meant to correct
the 2016 sentence, must stand. It reflects not only the judge’s
decision but the joint proposal of the parties. Even if the dis-
trict court lacked the authority to enter that sentence, it was
not corrected within 14 days and is still enforceable. Id.
Because the February 2021 distribution sentence cannot be
“corrected” under Rule 36 because of a purported incon-
sistency between it and the 2013 orally pronounced sentence,
we vacate the May 2021 amended judgment and reinstate the
distribution sentence from February 2021.
Whether the revocation sentence in the delivery case was
properly modified under Rule 36 is a closer issue. As the gov-
ernment points out, that sentence, unlike the distribution sen-
tence, was not modified between 2013 and May 2021, and
once the May 2021 amended delivery judgment is vacated,
McClain will serve only 48 months of total federal time after
the state sentence, which is not what the court pronounced at
its 2013 oral sentencing. So, it continues, nothing prevented
the modification of that sentence in May 2021 under Rule 36,
to add back 18 months.
McClain replies that, on its own, the written 2013 delivery
sentence is “entirely consistent with the oral sentence,” mak-
ing a correction unnecessary. He points out that any incon-
sistency is revealed only when looking at the delivery sen-
tence together with the distribution sentence, which changed
after 2013. The oral pronouncement called for 24 months of
total federal time to run concurrent with the state sentence
and for the federal sentences to run consecutively. The 2013
written delivery judgment imposed 18 months to run fully
concurrent with the state sentence, and consecutive to the dis-
tribution sentence. This could have easily conformed to the
Nos. 21-2089 & 21-2090 9
pronouncement: if at the same time, the court had ordered the
distribution sentence to run concurrently with the state case
for 6 months, McClain would have received the pronounced
concurrent 24 months (18 from the 2013 delivery sentence
plus the corrected 6). No change was needed to the 2013 de-
livery judgment to conform it to the corresponding oral pro-
nouncement. Therefore, McClain argues, any correction
would not be of clerical error.
McClain has the better argument. True, if the May 2021
modifications are rejected, the 2013 written delivery sentence
will not follow the intent of the court at the time of oral sen-
tencing because McClain will serve only 48 months after his
state sentence. (At least on paper—in reality McClain has
served more than that because he was incarcerated through-
out this appeal.) But that does not mean that the sentence con-
tains a “clerical error.” Rule 36 is not intended to fix “errors
made by the court itself.” United States v. Daddino, 5 F.3d 262,
264 (7th Cir. 1993) (per curiam).
Here, the district court made errors in its imposition and
modification of the distribution sentence, including by adopt-
ing the agreed changes in February 2021. The court was not
entitled to use the government’s motion in May to offset the
error by adding 18 months back onto McClain’s federal time
by adjusting the delivery sentence. In 2013, the district court
had bundled the two sentences, but the modifications to the
distribution sentence unbundled them; some justification spe-
cific to the delivery sentence was therefore required. There
was none. Any inconsistency in the delivery sentence is invis-
ible without also considering the 2013 distribution sentence.
Accordingly, we VACATE both amended judgments, and
REMAND with instructions to reinstate the last sentence in each
10 Nos. 21-2089 & 21-2090
case: the February 2021 distribution sentence, and the 2013
revocation sentence in the delivery case.
