Defendants Receive A (Short-Lived?) Benefit From A “Judicial Gaffe”
After Francis Lawrence and his co-defendants successfully filed motions to reduce their sentences under the retroactive sentencing guideline reductions for crack cocaine offenses, the district court—apparently inadvertently—included language in the sentencing orders that converted each sentence into “time served.” Within a few weeks after realizing its error, the court modified the orders to correct the language. The defendants appealed, challenging the court’s authority to substantively modify their sentences outside of the seven-day window permitted by Federal Rule of Criminal Procedure 35.
A Seventh Circuit panel now vacates the amended sentence, ruling that because the error was not “clerical” under Rule 36 (which would otherwise allow unlimited time to correct clerical errors), the Judge could not amend the order past the deadline. But while victory for the defense is sweet, it also may be temporary. The Court, in a thoughtful decision available below, practically invites the government to file an appeal from the original, mistaken sentence:
The government has 30 days after the entry of the order being appealed to file a notice of appeal with the district court. Fed. R. App. P. 4(b)(1)(B). Here, the government’s time to file a notice of appeal had not yet expired, when, on March 26, the district court sua sponte entered new orders. At that point, the government had no reason to appeal the original orders because the orders had been superseded by sentences that presumably no longer fit within the appealable conditions specified by § 3742(b). . . . Now that the sentences of Nos. 08-1856, 08-1857, 08-1858, and 08-1862 13 March 4, 6, and 13 are at issue again, it would not seem to run afoul of the cross-appeal rule or undermine the interests of fair notice and finality to permit the government to file notices of appeal within the remainders of the 30-day time periods that had not expired as of March 26. If the government chooses to appeal, the district court should consider whether the defendants should be detained pending the appeals pursuant to 18 U.S.C. § 3143(c). Any such appeals should be returned to this panel as successive appeals under Operating Procedure 6(b).
Is this judicial time well spent, or an example of being slave to good procedure?