United States v. Burton, Daniel ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1323
U NITED S TATES OF A MERICA,
Plaintiff-Appellee
v.
D ANIEL C. B URTON,
Defendant-Appellant.
____________
A ppeal from the U nited States District Court
for the Northern District of Illinois, Eastern Division.
N o. 04 CR 0317— Blanche M . M anning, Judge.
____________
A RGUED M AY 6, 2008—D ECIDED S EPTEMBER 11, 2008
____________
Before E ASTERBROOK, Chief Judge, and W OOD and T INDER,
Circuit Judges.
W OOD , Circuit Judge. Daniel Burton pleaded guilty
to committing five bank robberies, see 18 U.S.C. § 2113(a),
and conspiring to commit bank robbery, see 18 U.S.C.
§ 371, after he and his confederates were caught trying
to rob the same bank for the second time, using exactly
the same kind of loot bag as they had used before. The
district court accepted the plea on September 19, 2006.
2 No. 07-1323
Before his sentencing hearing on January 31, 2007, Burton
raised two objections to his presentence report (PSR). He
reiterated those objections at the hearing, and also ad-
dressed the considerations outlined in 18 U.S.C. § 3553(a).
After Burton was finished, the district court accepted
the findings laid out in the PSR and sentenced him to
the top of the range suggested by the Sentencing Guide-
lines, 188 months.
The problem that gave rise to this appeal arose from
the manner—or perhaps more accurately the timing—of
the district court’s explanation of its sentencing decision.
When it orally pronounced the sentence, the court ex-
plained itself as follows:
Well, Mr. Burton, it does appear that you have—well,
number one, I must acknowledge that you appear to
be an extremely intelligent young man. Just looking
at your writings and what have you, it seems unfortu-
nate that you did not develop whatever talents you
have to [do] something more positive in life.
It’s really most distressing to see somebody lead
the kind of life that apparently you have, and it could
have been so much better, it seems. Just listening
to you in the time that you’ve appeared before me
and in your writings, et cetera, it seems to me that you
have a lot of potential, and that’s most unfortunate.
In any event, I have to agree with the Government,
Mr. Burton. You have an extremely checkered past.
Even in this particular case, the numbers involved,
I keep taking into account that there is nobody sug-
gesting you had a gun, but the inference was there
No. 07-1323 3
when you were committing the acts that you were
scaring people. You were trying to make people think
that you had a gun. You know, your conduct in this
case has just been totally unaccepted [sic].
On February 12, the court docketed its judgment and
appended an additional two pages, made available to the
parties, entitled “Statement of Reasons [Not for Public
Disclosure].” Burton had filed a notice of appeal ten days
earlier, on February 2, but, under F ED. R. A PP. P. 4(b)(2),
that notice was deemed filed as of February 12. The
next day, the appeal was docketed in this court; shortly
thereafter, Burton’s trial counsel withdrew, and on Febru-
ary 21 briefing in this court was suspended.
Burton’s appeal is based on the fact that the district
court decided to file a more complete sentencing memo-
randum on March 26, long after the case was before
this court. The five-page memorandum reiterated that the
sentence was for 188 months’ imprisonment and repeated
what the district court had said about the objections to
the PSR. The explanation in the March 26 memorandum
of the court’s assessment of the § 3553(a) factors, was, at
a minimum, much more thorough than the reasons the
court had offered orally, even though both supported
the same outcome: a top-of-the-range sentence. Whether
the memorandum was substantively different is a bone
of contention between the parties. Importantly, how-
ever, nothing the district court did after the oral pro-
nouncement of the sentence changed its final judgment:
the court consistently said that Burton’s sentence was
for 188 months. Burton has limited his arguments on
4 No. 07-1323
appeal to two questions relating to the memorandum:
first, whether the district court had jurisdiction to enter it
at all, and second, whether he was deprived of his right
to be present at a critical phase of his trial when the
court entered it without giving him an opportunity to
participate somehow in the process.
This court appointed counsel to assist Burton on
appeal, and we appreciate counsel’s efforts. Whether the
district court retained the power to enter the memoran-
dum when it did is a jurisdictional question that we
review de novo. United States v. Daddino, 5 F.3d 262, 264,
(7th Cir. 1993). We also decide for ourselves whether, if
this is relevant, the March 26 memorandum adequately
reflected the reasons given at the sentencing hearing,
United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998),
and whether the defendant was deprived of his right to
be present at a crucial stage of the proceedings, United
States v. Smith, 31 F.3d 469, 471 (7th Cir. 1994).
For the most part, the filing of a notice of appeal shifts
jurisdiction from the district court to the court of appeals.
See Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
58 (1982). But there are exceptions to that rule. Griggs
acknowledges that the district court is deprived of juris-
diction over only “those aspects of the case involved in
the appeal.” Id. Ancillary issues, such as attorney’s fees,
may still be dealt with by the district court even after
an appeal has been lodged. The district court may also
issue orders “in aid of the appeal, to correct clerical
mistakes under [FED. R. C RIM. P. 36], or in aid of execution
of a judgment that has not been stayed or superseded.”
No. 07-1323 5
Henry v. Farmer City State Bank, 808 F.2d 1229, 1240 (7th
Cir. 1986) (citing 9 M OORE’S F EDERAL P RACTICE ¶ 203.11, at
3-44 to 3-46). The crucial question in this case is there-
fore whether the district court was authorized to file
the sentencing memorandum when it did.
We concluded that as long as the later statement does
not in any way change the judgment of the court, the
district court is entitled to enter it. We appreciate the
fact that district courts may not be prepared at the time
of a sentencing hearing to file, at the same moment, a
fully considered written memorandum explaining the
chosen sentence. But that is why a few days often pass
between the oral pronouncement of a sentence and the
docketing of the district court’s judgment. The court is
free—indeed, encouraged, see United States v. Higdon, 531
F.3d 561, 565 (7th Cir. 2008)—to file a written memoran-
dum up to the time when the judgment is entered on its
docket, and even thereafter, if a proper post-judgment
motion has been filed. But even this kind of sentencing
memorandum cannot effect a substantive change from
the one announced at the hearing. As we often have
noted, “[t]he rule in such situations is clear: If an incon-
sistency exists between an oral and the later written
sentence, the sentence pronounced from the bench con-
trols.” United States v. Alburay, 415 F.3d 782, 788 (7th Cir.
2005) (quotation marks omitted).
Logically, there are three possibilities that might de-
scribe the March 26 memorandum: either it replicates
the oral sentence for all practical purposes, or it expands
on the judge’s reasoning without changing the ultimate
6 No. 07-1323
judgment, or it modifies the judgment. The district court
was without authority to make any substantive change
in the sentence after the appeal was lodged in this court,
and so it is easy to see why the memorandum must be
stricken if the last situation holds. As we have said,
however, that possibility is easy to reject here: Burton’s
sentence at all times has been for 188 months. If the March
26 memorandum is nothing but a wordier version of
what the court said at the sentencing hearing, then
neither the Government nor Burton loses anything by our
either considering it or disregarding it. If Burton had
raised an argument on appeal that depended on some
difference between the two versions of the court’s explana-
tion, then we would have a more difficult case. At some
point, the record should be closed so that appellate
review can go forward. Once an appeal is proceeding,
courts of appeals should not have to check the docket
of the district court constantly to make sure that the
judge has not added yet another statement about its
sentencing decision. Indeed, at least one member of this
court has expressed the opinion that the practice of filing
a post-appeal opinion, while within the district court’s
power, is one that should be used sparingly. See Matter of
Jones, 768 F.2d 923, 930-31 (7th Cir. 1985) (Posner, J.,
concurring). In this case, we have no need to say more
about the district court’s March 26 memorandum, because
it did not come so late as to disrupt our proceedings, nor
did it alter even the reasoning behind the judgment
enough to cause concern. Burton has asked only for a
new sentencing hearing, and we see no reason why the
filing of the March 26 memorandum while this appeal
was pending gives him that right.
No. 07-1323 7
This conclusion largely answers Burton’s second point,
which is that the district court deprived him of his right
to be present at a crucial stage of the proceedings, namely,
when the written judgment issued. Burton was indisput-
ably present at the oral sentencing, which is the moment
when the sentence attaches. See United States v. Napier,
463 F.3d 1040, 1042 (9th Cir. 2006). A criminal defendant
has no right to be present in the judge’s chambers
when she writes her sentencing memorandum or files
it with the clerk.
We conclude by noting again that Burton has not pre-
sented any argument to us claiming that his sentence
was either based on an erroneous calculation under the
Sentencing Guidelines or was unreasonable. He has not
argued that the court’s oral explanation was so wanting
that we must remand for that reason. Finally, if we were
to grant Burton the new sentencing hearing he has re-
quested, we see nothing to suggest that the district court
would not repeat exactly what it has already said three
times. We therefore A FFIRM the judgment of the district
court.
9-11-08