United States v. Jermane Johnson

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