United States v. Jermane Johnson ( 2009 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 08-3393
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    JERMANE C. JOHNSON,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 4:95-cr-40083-JPG-2—J. Phil Gilbert, Judge.
    A RGUED A PRIL 2, 2009—D ECIDED JULY 9, 2009
    Before B AUER and F LAUM, Circuit Judges, and K APALA ,
    District Judge.Œ
    B AUER, Circuit Judge. In 1996, Johnson pleaded guilty
    to conspiracy to distribute and possess with the intent
    to distribute crack cocaine. 
    21 U.S.C. § 846
    . Under the
    1995 United States Sentencing Commission Guidelines
    Manual, a 38 base offense level applied to any case when
    Œ
    Of the Northern District of Illinois, sitting by designation.
    2                                             No. 08-3393
    a defendant’s relevant conduct involved 1.5 kilograms
    or more of crack cocaine. As part of his plea, Johnson
    agreed that his relevant conduct involved 1.5 kilograms
    or more of crack cocaine. The presentence investigation
    report (PSR) that had been prepared for Johnson’s sen-
    tencing calculated his relevant conduct at 4,536 grams of
    crack cocaine. The district court sentenced Johnson to
    192 months’ imprisonment, which was later reduced to
    180 months.
    Twelve years later, the Sentencing Commission reduced
    the penalties for crack cocaine offenses by amending, and
    applying retroactively, § 2D1.1 of the Sentencing Guide-
    lines; in general, under the amended Guidelines, a defen-
    dant with less than 4.5 kilograms of crack cocaine could
    be eligible for a retroactive, two level reduction in base
    offense level.
    To take advantage of the revised Guidelines, Johnson
    moved the district court, under 
    18 U.S.C. § 3582
    (c)(2), to
    reduce his sentence. Johnson claimed that the PSR con-
    tained a mathematical error that led to the finding of
    4,536 grams. According to Johnson, a correct calcula-
    tion of his relevant conduct would have made him
    eligible for a two-point reduction.
    The district court disagreed and denied Johnson’s
    motion; it found that it did not have jurisdiction to
    revise the PSR because Johnson’s relevant conduct ex-
    ceeded 4.5 kilograms, rendering the retroactive amended
    Guidelines inapplicable. The court classified Johnson’s
    motion as an effort to find that a “lesser amount of crack
    cocaine was involved in his relevant conduct, such that
    No. 08-3393                                             3
    he might be eligible for a sentence reduction under the
    amended Guidelines.” The court found that there was
    no jurisdiction for such a collateral attack on a prior
    sentencing calculation. Further, it noted that even if
    the PSR contained a mathematical error, there was no
    jurisdiction to reconsider the factual basis for Johnson’s
    relevant conduct determination.
    This timely appeal followed.
    II. DISCUSSION
    Johnson argues that 
    18 U.S.C. § 3582
    (c)(2) entitles him
    to a two-point base offense level reduction because the
    finding of 4,536 grams of cocaine base was improperly
    calculated through “faulty math” and the district court
    should have corrected this clerical error under Fed. R.
    Crim. P. 36. “We review a challenge to the district
    court’s authority to modify a sentence de novo.” United
    States v. Lawrence, 
    535 F.3d 631
    , 634 (7th Cir. 2008).
    Generally, district courts have limited power to revisit
    sentences after they are imposed. United States v. Goode,
    
    342 F.3d 741
    , 743 (7th Cir. 2003). A district court, how-
    ever, does have the authority to modify a sentence
    where a defendant “has been sentenced to a term of
    imprisonment based on a sentencing range that has
    subsequently been lowered by the Sentencing
    Commission . . . .” 
    18 U.S.C. § 3582
    (c)(2). Under the
    revised USSG § 2D1.1, which was made retroactive, the
    two level reduction of a base offense level does not
    apply when the relevant conduct involved more than
    4                                               No. 08-3393
    4.5 kilograms of the drug. Because Johnson’s relevant
    conduct was found to be more than 4.5 kilograms
    (4,536 grams), the district court did not have jurisdic-
    tion to adjust Johnson’s sentence by revising the PSR.
    A court can, however, correct “arithmetical, technical, or
    other clear error[s]” within seven days after sentencing,
    Fed. R. Crim. P. 35(a), or correct a “clerical error” in a
    judgment or order at any time. Fed. R. Crim. P. 36. Accord-
    ing to Johnson, his § 3582(c)(2) motion was not a col-
    lateral attack on the sentence; rather, it was a motion
    to clarify a mathematical error, which led to a finding
    of 4,536 grams, that could have been corrected under
    the Federal Rules of Criminal Procedure. If the district
    court corrected the error, Johnson argues, the drug
    amount involved in his relevant conduct would have
    fallen under the 4.5 kilograms cap and permitted the
    two level reduction.
    Specifically, Johnson argues that the method used in
    reaching 4,536 grams of crack cocaine was incorrect.
    Regarding the drug amount, the PSR’s preparer noted
    that she would use a conservative estimate of the drug
    amount range for the relevant drug period; ultimately,
    a higher reported amount was used. A probation officer
    later verified that calculation errors were made by
    using the higher drug estimate in arriving at the
    relevant conduct figure. Johnson argues that because of
    these errors (miscalculations in the variables that led to
    amounts later added together), the district court should
    have invoked its authority under Rule 36 to revise the
    PSR to reflect a lower relevant conduct amount.
    No. 08-3393                                                 5
    At oral argument, Johnson assured us that his appeal is
    based on a “mathematical error,” and not on a collateral
    attack denying responsibility for the relevant conduct
    listed in the PSR. We agree with the district court, how-
    ever, that Johnson’s motion was a collateral attack on
    his sentence. The challenge is not to the mathematical
    calculation, but to the variables that led to the amounts
    used in the relevant conduct calculation.
    Rule 36 is limited to errors that are clerical in nature,
    typically where the written sentence differs from the
    oral pronouncement of the sentence, not judicial mis-
    takes. See Lawrence, 
    535 F.3d at 635
     (“Rule 36 . . . cannot be
    used to fix judicial gaffes.”) (citations and internal quota-
    tions omitted). Although a district judge may correct a
    final judgment in a criminal case to reflect the sentence
    he actually imposed, “he cannot change the sentence he
    did impose even if the sentence was erroneous.” 
    Id. at 636
    (quoting United States v. Eskridge, 
    445 F.3d 930
    , 934 (7th
    Cir. 2006)). Rule 36 simply does not apply; nothing in
    the record indicates that a relevant conduct finding
    involving 4,536 grams of crack cocaine was added to the
    overall sentencing calculation without the district court’s
    knowledge or approval. See United States v. McHugh,
    
    528 F.3d 538
    , 540 (7th Cir. 2008).
    Finding no clerical error, there is no jurisdiction to
    change the 4,536 gram finding. The district court’s
    finding is A FFIRMED.
    7-9-09