United States v. McHugh, Thomas M. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3594
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HOMAS M. M C H UGH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-CR-100-S—John C. Shabaz, Judge.
____________
A RGUED M AY 6, 2008—D ECIDED JUNE 12, 2008
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Before E ASTERBROOK, Chief Judge, and W OOD and T INDER,
Circuit Judges.
E ASTERBROOK, Chief Judge. Thomas McHugh pleaded
guilty to structuring financial transactions to evade
currency-reporting requirements, see 31 U.S.C. §5324(a)(3),
and has been sentenced to 41 months’ imprisonment. In
open court, the district judge said that he would recom-
mend to the Bureau of Prisons that McHugh “be afforded
the opportunity to participate in substance abuse educa-
tion and treatment programs”. The judgment includes
this statement: “The Court recommends the defendant
be afforded the opportunity to apply for substance abuse
2 No. 07-3594
education and treatment programs while confined which
do not include an early release.” McHugh’s only argu-
ment on appeal is that the language “which do not in-
clude an early release” is inconsistent with the oral
statement. A sentence pronounced in a defendant’s
presence prevails over a written sentence when the two
conflict. See, e.g., United States v. Makres, 851 F.2d 1016 (7th
Cir. 1988).
Whether the judge’s oral and written sentences conflict
is an interesting question—an elaboration differs from a
contradiction—but not one we need answer. Indeed, this
appeal does not present any question within “the judi-
cial Power” under Article III of the Constitution, because
a recommendation differs from a judgment. Before we
proceed, however, we must clear up a problem intro-
duced by the district court’s recent effort to resolve the
issue.
After both sides’ briefs had been filed, and less than a
month before the date set for oral argument, McHugh
(acting pro se) filed in the district court a motion asking
that the phrase “which do not include an early release”
be deleted. Judge Shabaz, who sentenced McHugh, is
on medical leave; Chief Judge Crabb granted the motion
in his absence.
The district court lacked authority to make this change.
First, in criminal cases district courts may correct errors
only within seven days of sentencing. Fed. R. Crim. P.
35(a). Chief Judge Crabb invoked Fed. R. Crim. P. 36,
which provides that “clerical” errors may be corrected “at
any time”, but the record does not show that this error
was “clerical”. Rule 36 cannot be used to enlarge the
time provided by Rule 35(a) for fixing judicial gaffes. See
No. 07-3594 3
United States v. Becker, 36 F.3d 708, 710 (7th Cir. 1994);
United States v. Daddino, 5 F.3d 262, 264–65 (7th Cir. 1993).
Because nothing in the record implies that the contested
language was added to the judgment without Judge
Shabaz’s knowledge or approval, Rule 36 does not ap-
ply. (It is possible in principle for a judge to make
a “clerical” mistake by transcribing his own decision
incorrectly, but the record does not suggest that this has
occurred.)
Second, a district court may not interfere with this
court’s jurisdiction by amending a decision that is under
appellate review. “The filing of a notice of appeal is an
event of jurisdictional significance—it confers jurisdiction
on the court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58 (1982). A district court may patch up clerical
errors affecting one aspect of a case while another aspect
is on appeal. See United States v. McGee, 981 F.2d 271 (7th
Cir. 1992). But neither McGee nor any other opinion that
we have been able to find allows a district court to use
Rule 36 to change the precise feature of a disposition
that is under appellate review. Only one court at a time
has jurisdiction over a subject. Chief Judge Crabb appar-
ently did not recognize this problem, because McHugh’s
motion did not mention that the same issue was pending
on appeal and the district court granted the motion
before the prosecutor could file a response.
Third, neither Chief Judge Crabb nor this court is entitled
to change Judge Shabaz’s recommendation to the Bureau
of Prisons. A recommendation differs from a judgment,
and under Article III that difference is fundamental.
4 No. 07-3594
The First Congress enacted a statute directing federal
judges to review veterans’ and survivors’ claims and make
recommendations to the Secretary of War about whether
these claims should be paid. Chief Justice Jay and Justice
Cushing concluded that this law was unconstitutional,
because the “judicial Power of the United States” is a
power to make binding decisions, not to make suggestions
that the Executive Branch may accept or reject. See
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The Justices
volunteered to make recommendations outside their
judicial capacities, but no one supposed then (or later) that
these recommendations could be reviewed by another
court. If making a recommendation is not the exercise of
the judicial power, then affirming or reversing such a
recommendation on appeal also is not an occasion for
the use of a “judicial” power.
Hayburn’s Case did not speak for the Supreme Court (the
statute was amended before the full Court could act),
but the decision of the Justices on circuit has long been
understood as a foundation of Article III jurisprudence.
See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218
(1995); Chicago & Southern Air Lines, Inc. v. Waterman
Steamship Corp., 333 U.S. 103 (1948); United States v. Ferreira,
54 U.S. 40 (1852). It means that, although a judge may
tender a recommendation to the Executive Branch, the
recommendation cannot be treated as if it were a judg-
ment and reviewed or revised by some other judge.
Judge Shabaz had a case or controversy—he had to
decide whether McHugh had committed a crime and, if
so, what punishment to mete out—but Chief Judge Crabb
did not, and neither do we. It is no more permissible to
amend Judge Shabaz’s recommendation to the Bureau of
Prisons than it would be to amend his statement of rea-
No. 07-3594 5
sons for the sentence, just to yield a view more to another
judge’s liking, while leaving the sentence untouched. That
would be an advisory opinion. See Powerex Corp. v. Reliant
Energy Services, Inc., 127 S. Ct. 2411, 2419 (2007); Leguizamo-
Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007).
Judge Shabaz gave the Bureau of Prisons a sugges-
tion, which the Bureau is free to accept or reject. In doing
so he did not exercise the judicial power, and McHugh’s
request that we redact the suggestion likewise does not
appeal to the judicial power. McHugh’s lawyer is free to
communicate with the Bureau of Prisons on this subject,
but no Article III court may issue an advisory opinion
changing a suggestion that does not affect the sentence.
McHugh contends that United States v. Gonzales, 765
F.2d 1393 (9th Cir. 1985), reviewed a district judge’s
suggestion to the Bureau of Prisons, but we do not read
Gonzales so. Gonzales contended that a recommendation
to the Bureau that he be placed in a sex-offender treat-
ment program revealed that the district judge had taken
into account certain contested information in the pre-
sentence report, and had increased his term of imprison-
ment on the basis of this information, even though by
a statement under Fed. R. Crim. P. 32(c)(3)(D) the judge
had disclaimed any reliance on that information. (The
subsection in question is today Rule 32(i)(3)(B).) The
court of appeals took the district judge at his word and
affirmed. The question before the court of appeals in
Gonzales—whether the defendant’s sentence was too
long—was within the judicial power under Article III. That
a dispute about the validity of a judgment may be en-
tangled with a recommendation does not imply that a
recommendation standing alone may be reviewed or
“corrected” by a court of appeals.
6 No. 07-3594
The decision of Chief Judge Crabb dated April 23, 2008,
is vacated. The appeal otherwise is dismissed for want of
a justiciable controversy.
USCA-02-C-0072—6-12-08