NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 28, 2010*
Decided July 28, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐4109
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 1034
JESUS NUNEZ‐NATIVIDAD
Defendant‐Appellant. Matthew F. Kennelly,
Judge.
O R D E R
Jesus Nunez‐Natividad, a Mexican citizen who has twice been removed from the
United States, pleaded guilty to being in the country again without authorization. See
8
U.S.C. § 1326(a). At sentencing, the district court imposed a term of 57 months’
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09‐4109 Page 2
imprisonment, to be followed by a 3‐year term of supervised release. The written judgment,
however, states that the term of supervised release is to be 4 years.
Nunez‐Natividad raises but one issue on appeal. He argues—and the government
concedes—that the 4‐year term of supervised release stated in the written judgment exceeds
the maximum authorized by statute and conflicts with the oral pronouncement at
sentencing. The parties seek a remand for correction of the judgment.
We agree with the parties that the written judgment is erroneous. Nunez‐Natividad
was convicted of an aggravated felony before he was first removed from the United States,
so the statutory‐maximum term of imprisonment for his § 1326(a) violation was 20 years,
making it a Class C felony. See
8 U.S.C. § 1326(b)(2);
18 U.S.C. § 3559(a)(3). The district
court thus could not impose a term of supervised release longer than 3 years. See
18 U.S.C.
§ 3583(b)(2); United States v. Showalter,
933 F.2d 573, 574 (7th Cir. 1991). But even if the
statute permitted a 4‐year term, the written judgment could not be given effect because it
conflicts with the court’s oral pronouncement. See United States v. Bonner,
522 F.3d 804, 808
(7th Cir. 2008).
A remand is unnecessary, however, because we can correct the error ourselves. The
discrepancy in the written judgment is a clerical error, correctable at any time under Federal
Rule of Criminal Procedure 36. See United States v. Johnson,
571 F.3d 716, 718 (7th Cir. 2009);
United States v. Eskridge,
445 F.3d 930, 934 (7th Cir. 2006). Rule 36 permits us to fix clerical
mistakes ourselves. See FED. R. CRIM. P. 1(a)(1) (Rules apply in criminal proceedings in
courts of appeals); United States v. Pulley,
601 F.3d 660, 668 n.4 (7th Cir. 2010); see also United
States v. Boyd,
208 F.3d 638, 649 (7th Cir. 2000), vacated on other grounds,
531 U.S. 1135 (2001).
The clerk of the district court is ordered to amend the written judgment to conform with the
sentencing judge’s oral pronouncement that Nunez‐Natividad’s term of supervised release
is 3 years. With that modification, we AFFIRM the judgment of the district court.
