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July 28, 2008

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  At that point, the government had no reason to appeal the original orders because the orders had been superseded by sentences that presumably no longer fit within the appealable conditions specified by § 3742(b).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?

Download USA v. Lawrence.pdf

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July 28, 2008 at 08:40 PM | Permalink


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The question's a bit tendentious. The courts try to follow all of the rules, not just the efficient ones or the ones they like. The problem seems to be with Rules 35 and 36, either as written or as interpreted by the CA7.

Posted by: | Jul 28, 2008 9:11:42 PM

Inadvertent language by the court should be held to the same standard as, if not higher than, anyone else. If a defendant were to make an inadvertent claim during trial, he or she most certainly would suffer direct consequences in sentencing.

As requested, my name is Tosh Dawson. I am an advocate for sentencing reform in the state of Nevada, specifically in Washoe County (Reno).

Posted by: Tosh Dawson | Jul 28, 2008 9:43:32 PM

I think the court got in right. The person who is harmed by the judicial error is not the court, it's the government. If they don't like the sentence handed down (even if it was in error) they can appeal that sentence. But the error was clearly not clerical and clearly can't be amended by that court under the applicable rules. That doesn't mean it can't be appealed and modified by the appeals court. Whether that should be done, again, is for the government to decide.

Posted by: Daniel | Jul 28, 2008 10:17:52 PM

Judicial time well spent.

Posted by: Orin Kerr | Jul 29, 2008 2:33:38 AM

Is there a double jeopardy problem, given that the defendants had served the entire "time served" sentence?

Posted by: Tim Holloway | Jul 29, 2008 9:36:22 AM

If the courts made this mistake, it would be a sham to let them open the door for the prosecution to come back in. The court should not have made the error, trying to erase it by leaving a back door is unethical.

Posted by: JT | Jul 29, 2008 12:43:40 PM

Huh? How is it a "sham" to allow the prosecution to appeal the sentence as it normally could?

Posted by: Jay | Jul 29, 2008 2:26:38 PM

The government's 30-day time to appeal is statutory and jurisdictional, and it has already run. See Bowles v. Russell.

The Seventh Circuit appears to suggest that the 30 days were equitably tolled during the time the amended sentence was in effect. But Bowles made quite clear that because the time to appeal under FRAP 4 is jurisdictional, it is not subject to equitable exceptions--even where a party justifiably relied on an error created by the district court. Under Bowles, the government is out of time to appeal.

Posted by: Def. Atty. | Jul 29, 2008 2:56:36 PM

Def. Atty., we may have to read the opinion in detail. However, I also was left pondering how the government could still appeal . . . but again, I merely glanced at the opinion. Is there anyone out there that can explain why the government may still be able to appeal?

Posted by: Tim Holloway | Jul 29, 2008 3:44:41 PM


I read the opinion quickly, and saw no acknowledgment of Bowles. The Court dealt with Greenlaw and the cross-appeal issue, but did not consider Bowles and the timeliness issue.

Admittedly, Bowles is not precisely on all fours, as the district court error there was an order effectively (and erroneously) extending the appeal deadline, rather than, as here, an order effectively (and erroneously) supplanting the judgment appealed. But both the language and the logic of Bowles are hard to escape--particularly in light of the 7th's characterization of the amended judgment as a "purported" judgment.

Neither of the other two escape routes in FRAP 4(b) appear to apply. The amended judgment does not toll the time to appeal under FRAP 4(b)(3). And although the time to appeal can be extended under 4(b)(4), that time by now has run as well.

BTW, the completion of the earlier sentence does not have double jeopardy effect. If the earlier sentence is timely appealed and then vacated, the resentence does not constitute multiple punishment.

Also BTW, I don't think the Defs' windfall here is anything to cheer or gloat over. No one but these two Defs should feel good about the pass they received due to the court's blunder. But if I'm right about Bowles (which I think was wrongly decided), there is an aspect of sauce for the goose, sauce for the gander about living with the Bowles decision. The 7th's invitation for the G to appeal out of time smacks of a double standard in light of the treatment Bowles got.

Posted by: Def. Atty. | Jul 29, 2008 4:06:23 PM

Def. atty. As I read it, the court appears to suggest that the clock stopped within the 30 day time limit when the judge amended the original order.

"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."

The appeal then challenged whether the judge had the authority to amend that order.

Original order (earliest) March 4th.
Amended order March 26th; defense appeals amended order, clock stops ticking on original order.
Date amended order vacated July 25th. Clock starts again on original order.

Leaving, as I read it, the government now has eight days from July 25th to appeal the original order.

This makes sense to me. Otherwise you are expecting the government to appeal an order within 30 days when the government has yet to be put on notice that the order is final.

"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."

I agree.

Posted by: Daniel | Jul 29, 2008 5:21:18 PM

Def. Atty. Let me also take a moment to distinguish Bowles. It is not the nature of the judicial error that is definitive but the effect of that error on the statutory scheme. In Bowles, a judicial error created a *extension* of time to file beyond the statutory maximum; that gave one party a bigger pie of time, if you will. Here, the appeals court is saying that the time to file was merely *suspended* by the judicial error. The pie didn't get bigger, it was just divided up.

Let me draw an analogy to a basketball game. In Bowles, the referees erred by trying to give one team more time on the clock than would otherwise be allowed by the rules. Here, on the other hand, the referee is merely calling a "time out" to correct a mistake made by another referee. The actual playing time on the court remains the same. From the perspective of the fan in the stands, both games might last three hours. Yet the fans would be quite irate if one team got an extra 30 seconds minutes to play on the court by themselves while no one would mind a bit if there was one more 30 second "official's time out". In fact, official's time outs happen all the time in basketball to correct some error made by another official.

Because the appeals court is suspending the 30 day clock, and not extending it, Bowels is not on point.

Posted by: Daniel | Jul 29, 2008 6:06:57 PM


I think your view of "stopping the clock" makes intuitive sense, and is what the 7th had in mind. I also think that on a clean slate it is a sensible way to handle the issue.

But I do not see a distinction between "stopping the clock" and equitable tolling. It is an equitable exception to what is otherwise a mechanical process. And Bowles told us that because the time to appeal under FRAP 4 is statutory, mandatory, and jurisdictional, it is not subject to equitable exceptions. I think if you accept that rationale, then there is no room for equitably tolling the time period (i.e., stopping the clock), because it is not provided for in the statute and the statute is a limit on the court's jurisdiction.

I happen to disagree that Bowles is the right way to run things. But we have it now to live with. I think that stopping the clock, however sensible, is counter to the strict reading of the jurisdictional statute that the Court adopted in Bowles.

We can distinguish Bowles on the facts, but Bowles's rule does not depend on those facts. Its rule is that the time set in FRAP 4 is statutory, jurisdictional, and without equitable exception.

Posted by: Def. Atty. | Jul 30, 2008 10:28:55 AM

How would the defense now proceed? Would it file for a full court rehearing? Or would it wait for the government to appeal and then challenge the Seventh Circuit's jurisdiction to hear the appeal? It seems that the Seventh Circuit's jurisdiction would not be an issue on appeal because it already said - or at least implied - that it would have jurisdiction to hear the appeal.

Posted by: anon | Jul 30, 2008 11:51:06 AM

The defense would have to wait for the government's appeal, then move to dismiss it as untimely. This panel has directed that such an appeal return to them, so presumably the motion to dismiss would go to them too. Their current opinion says they are of a mind to entertain such an appeal, but neither the timeliness of such an appeal nor the Bowles precedent has been squarely before them. The defense would have to trust that the panel would fairly consider the new argument without prejudgment.

Posted by: Def. Atty. | Jul 30, 2008 7:15:06 PM

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