United States v. Merino, Dana

NONPRECEDENTIAL DISPOSITION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 April 16, 2008
Decided August 21, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 07-2976 & 07-2988
UNITED STATES OF AMERICA, Appeals from the United States District Court for
Plaintiff-Appellee, the Northern District of Illinois, Eastern Division.
v. No. 07 CR 66 -1
DANA C. MERINO, Robert W. Gettleman,
Defendant-Appellant. Judge.
ORDER
Dana Merino waived indictment and pleaded guilty to a one-count information
charging him with sending a threatening communication in interstate commerce. See 18
U.S.C. § 875(c). During contract litigation with Wilson Sporting Goods, Merino had sent
letters to Wilson employees threatening to kill them if this court affirmed the dismissal of
his complaint. See Merino v. Wilson Sporting Goods Co., 235 Fed. App’x 369 (7th Cir. 2007).
When arrested Merino was carrying a loaded gun in his car, and he already had acquired
the addresses, phone numbers, and dates of birth of the people he had threatened. At
sentencing the district court orally imposed a 10-month term of imprisonment, but that
term was reduced to 167 days—time served in pretrial detention—in the second of three
written judgments later entered by the court. These consolidated appeals arise from the
Nos. 07-2976 & 07-2988 Page 2
second and third judgments, but appointed counsel believes the appeals are frivolous and
has moved to withdraw under Anders v. California, 386 U.S. 738 (1967). We invited Merino
to comment on counsel’s submission, see C IR. R. 51(b), and in what Merino labels a “blind
reply” he openly admits that he received but did not read counsel’s Anders brief. Counsel’s
brief is adequate, and Merino’s reply adds nothing of substance.
To address counsel’s motion we must first sort through the procedural history. The
district court conducted Merino’s sentencing hearing on August 3, 2007, and orally
imposed a 10-month term of imprisonment, with the first 167 days to be served in custody
and the remainder in home confinement. The court also imposed a three-year term of
supervised release, with no mention of home confinement during supervised release. At
the sentencing hearing the district court also considered whether electronic monitoring
would be appropriate during the period of home confinement, but ultimately decided to
leave that decision to the probation office. That same day the court issued a written
judgment committing Merino to the custody of the Bureau of Prisons “to be imprisoned”
for a total of “ten months,” with the “first 167 days” to be “spent in custody” and “the
remainder . . . to be spent in home confinement.” The written judgment also imposed a
three-year term of supervised release to commence upon Merino’s “release from
imprisonment.” The clerk’s office entered this first judgment on August 8.
Two more judgments followed, both sua sponte. The first, which was issued on
August 7 and entered by the clerk of the district court on August 9, purports to correct a
clerical mistake under the authority of Federal Rule of Criminal Procedure 36. This
judgment altered the term of imprisonment from 10 months to 167 days and directed that
Merino be released “forthwith.” The judgment also reimposed the three-year term of
supervised release but added a directive that Merino serve the “first 4 and ½ months” of
his supervised release “in home confinement without electronic monitoring.” Then on
August 21 the district issued its third judgment, again under the authority of Rule 36. This
judgment is identical to the second, except that the period of home confinement was now
to be “with electronic monitoring.”
On August 17, 2007, after the district court had issued its second judgment, Merino
filed a pro se notice of appeal. His notice of appeal does not reference either of the first two
judgments but does make plain that he wanted to “appeal his guilty plea.” We docketed
this appeal as case no. 07-2966. On August 20 counsel filed a second notice of appeal, this
one “from the final judgment entered in this action on the 9th day of August, 2007.” We
docketed this appeal as case no. 07-2976. Then on August 22 counsel filed a third notice of
appeal, this one from the judgment issued on August 21. We docketed this last appeal as
case no. 07-2988.
Nos. 07-2976 & 07-2988 Page 3
On August 27, this court conducted a jurisdictional screening, consolidated the two
appeals filed by counsel, and issued an order explaining that “preliminary review”
indicated that Merino’s pro se appeal “duplicates later, timely appeals filed by counsel.”
We directed counsel (who no longer represents Merino) to either dismiss case no. 07-2966
voluntarily or else file a memorandum explaining why we should not dismiss the appeal as
unnecessary. Counsel did neither, and on October 3, 2007, we dismissed that appeal and
noted that “Merino’s appeal from his conviction and sentence will proceed under Appeal
Nos. 07-2976 and 07-2988.”
This last statement was made without the benefit of the full record, and we question
whether it is correct. Only Merino’s pro se notice of appeal makes reference to the guilty
plea underlying the first of the district court’s three judgments, but that appeal has been
dismissed. The third appeal has long been moot; that case arises not from a clerical
correction under Rule 36 but from a substantive modification of a condition of supervised
release. See 18 U.S.C. § 3583(e)(4); United States v. Navarro-Espinosa, 30 F.3d 1169, 1171 (9th
Cir. 1994). The new condition—the requirement of electronic monitoring during Merino’s
home confinement—expired when the 4½ months of home confinement ended. So that
leaves only case no. 07-2988, and unless we ignore the designation by counsel, see FED. R.
A PP. P. 3(c)(1)(B), that appeal calls up only “the final judgment entered . . . on the 9 th day of
August, 2007.”
That judgment was purportedly authorized by Rule 36. But that cannot be right,
because the second judgment did more than correct a clerical error in the original
judgment. The original judgment tracked the oral pronouncement of sentence, so it cannot
be characterized as mistaken. See United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005)
(explaining that oral pronouncement of sentence controls if written judgment is
inconsistent); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998) (same). The
judgment entered on August 9 reduced the term of imprisonment from 10 months to 167
days, but Rule 36 provides for the correction of “clerical errors,” not for wholesale changes
to the terms of a sentence or for the correction of errors the court itself made in
pronouncing sentence. See 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). The district court did not offer, nor can
we divine, any conceivable jurisdictional predicate for its second judgment. See United
States v. Smith, 438 F.3d 796, 799 (7th Cir. 2006); Romandine v. United States, 206 F.3d 731, 735
(7th Cir. 2000).
The revised sentence stands since it is not challenged by the government,
see Romandine, 206 F.3d at 737, but because the alteration was made without jurisdiction,
Merino’s appeal from the second judgment does not call into question his underlying guilty
plea, which is at the center of the only potential issues counsel has identified. “An appeal
Nos. 07-2976 & 07-2988 Page 4
from an order amending an earlier judgment does not independently bring before us the
merits of the original decision.” LeBeau v. Taco Bell, 892 F.3d 605, 608 (7th Cir. 1989). If this
was not the case, defendants could defeat the time limits for filing a notice of appeal merely
by asking the district court to enter a new judgment. See FED. R. A PP. P. 4(b), LeBeau, 892
F.3d at 608.
In any event, even if Merino’s appeal from the second judgment confers jurisdiction
for us to evaluate his guilty plea, we agree with appellate counsel that any challenge to that
plea would be frivolous. Merino did not move to withdraw his guilty plea in the district
court; he threatened to do so in various pro se filings but then changed lawyers and
abandoned all objections to his plea. See United States v. James, 487 F.3d 518, 527-28 (7th Cir.
2007); United States v. Traeger, 289 F.3d 461, 471 (7th Cir. 2002). Our review thus would be
for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo,
467 F.3d 630, 632 (7th Cir. 2006). The only technical error in the plea colloquy is that
Merino was not told of his right to counsel, see FED. R. C RIM. P. 11(b)(1)(D), but he was
represented by appointed counsel at the hearing, so he must have known of this right, and
the omission was harmless, see United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir. 1988).
Because counsel has not identified any nonfrivolous issues on appeal, we GRANT
the motion to withdraw and DISMISS the appeals.