United States v. Emanuel Newman , 794 F.3d 784 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-1326 & 15-1474
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EMANUEL T. NEWMAN,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:91 cr 02-3RLM — Robert L. Miller, Jr., Judge.
____________________
SUBMITTED JULY 22, 2015 — DECIDED JULY 23, 2015
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. More than 20 years ago,
Emanuel Newman was sentenced to 540 months’ imprison-
ment for drug offenses, which included distributing between
40 and 50 kilograms of cocaine. See United States v. Newman,
No. 91-3192 (7th Cir. Oct. 5, 1993) (unpublished order affirm-
ing his conviction and sentence). Congress and the Sentenc-
ing Commission have several times reduced permissible sen-
2 Nos. 15-1326 & 15-1474
tences for sellers of crack cocaine, but until recently none of
these changes affected persons who distributed powder co-
caine. Amendment 782 to the Sentencing Guidelines, howev-
er, effects an across-the-board reduction of two offense levels
in the drug-quantity table at U.S.S.G. §2D1.1. Because the
Sentencing Commission made that change retroactive, 18
U.S.C. §3582(c)(2) allows district judges to reduce the sen-
tences of persons already in prison (though Amendment 782
provides that reductions under its terms cannot permit any-
one to be released before November 1, 2015).
Newman’s motion under §3582(c)(2) contended that his
revised sentencing range is 292 to 365 months (the original
had been 360 months to life), and the prosecutor agreed. The
prosecutor recommended a reduction to 472 months, observ-
ing that Newman’s crimes (and criminal history) included
violence as well as drug sales, but on December 30, 2014, the
district court entered an order cutting the sentence to 348
months. This was achieved through a combination of con-
current and consecutive sentences that need not be ex-
plained here. It is enough for now that no one doubts that
the order of December 30 is lawful: the sentence on each
count is within the statutory maximum, and a term of 348
months is authorized by Amendment 782 in conjunction
with §3582(c)(2). The order states that the judge deemed the
prosecutor’s 472-month recommendation too high. The
United States did not protest and did not appeal.
A month later, on January 28, 2015, the district judge
amended the order by changing which sentences run con-
currently with or consecutive to which other sentences. The
total remained at 348 months. This order, like that of De-
cember 30, states that 472 months would be unduly long.
Nos. 15-1326 & 15-1474 3
But the next day the district judge amended the order yet
again. The revised order rearranges which sentences run
consecutively to which other sentences, and the upshot is a
total of 472 months in prison. The language from the earlier
orders stating that 472 months would be too high vanished.
The judge did not say why he now thought 472 months the
appropriate sentence and did not cite any authority allowing
him to add 124 months to Newman’s sentence.
Newman asked the judge to restore the 348-month pack-
age, relying on Fed. R. Crim. P. 35(a), which says that a judge
has 14 days to “correct a sentence that resulted from arith-
metical, technical, or other clear error.” The order of January
29 came more than 14 days after December 30, and at all
events the judge had not identified any “arithmetical, tech-
nical, or other clear error.” The judge denied Newman’s mo-
tion. The order reads in full: “The court DENIES the defend-
ant’s motion for reconsideration (doc. #743). The application
of Amendment 782 of [sic] December 30, 2014 wasn’t a ‘sen-
tencing’ within [sic] meaning of Fed. R. Crim. P. 35(a).”
The court did not explain why an order authorized by
§3582(c)(2) isn’t a sentencing for the purpose of Rule 35(a).
We know from Dillon v. United States, 560 U.S. 817 (2010),
that it isn’t a sentencing for the purpose of the Sixth
Amendment, which implies that it is not one for the purpose
of Fed. R. Crim. P. 32 either. Thus the judge need not order
the defendant produced in court and need not take new evi-
dence. See also Fed. R. Crim. P. 43(a)(3), (b)(4). But Dillon
does not say or suggest that a judge who has reduced a sen-
tence under §3582(c)(2) becomes empowered to increase it
months or years later, without regard to the time limits ordi-
narily applicable to revisions.
4 Nos. 15-1326 & 15-1474
If Rule 35 does not apply, then where did the district
court get the power to make any change at all, even one day
after the original reduction? Section 3582(c) says that a court
“may not modify a term of imprisonment once it has been
imposed”. Three exceptions follow. One is Rule 35. A second
exception, §3582(c)(1)(A), covers a motion by the Bureau of
Prisons asking the judge to reduce a sentence for “extraordi-
nary and compelling reasons” or a prisoner’s old age. And
§3582(c)(2) is the third exception. It provides that, if the Sen-
tencing Commission retroactively lowers a guideline range,
then “the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the ex-
tent that they are applicable, if such a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” This permits a court to reduce a sentence, not
to increase it.
Other than a correction on appeal—and, to repeat, the
United States did not file an appeal—the only source of au-
thority to fix a substantive error in reducing a sentence un-
der §3582(c)(2) is Rule 35(a), which permits action only with-
in 14 days. Cf. United States v. Redd, 630 F.3d 649 (7th Cir.
2011). (Criminal Rule 36 authorizes the correction of clerical
errors, but the 348-month term, if an error, was not a gaffe in
transcribing or putting a judicial decision on the docket and
so is outside the scope of Rule 36. See United States v.
McHugh, 528 F.3d 538, 540 (7th Cir. 2008).)
The United States has confessed error, and for the rea-
sons we have given we agree with its conclusion that the dis-
trict court lacked the authority to increase Newman’s sen-
tence by an order entered more than 14 days after December
30, 2014.
Nos. 15-1326 & 15-1474 5
The district court’s decision of January 29, 2015, is vacat-
ed, and the case is remanded with instructions to reinstate a
set of terms that in aggregate cannot exceed 348 months.