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‘Alternative’ sentences must be appealed

What the court held

Case: U.S. v. Smith, No. 05-1638.

Issue: Can a defendant get his sentence modified, because the court announced an "alternative" sentence that could apply, depending on the outcome of a Supreme Court case, even though the defendant did not file a timely notice of appeal.

Holding: 18 U.S.C. 3582(c) is a jurisdictional rule, and no exception applies.

A defendant must file a notice of appeal to preserve an objection to his sentence, even though the judge imposed an “alternative” conditional sentence. The Seventh Circuit held that in its U.S. v. Smith decision last week.

Rodrick Smith pleaded guilty to assorted drug offenses and was sentenced in November 2004 — after the Seventh Circuit’s decision in United States v. Booker, 375 F.3d 508 (7th Cir. July 9, 2004), but before the Supreme Court’s decision, 543 U.S. 220 (Jan. 12, 2005).

The Seventh Circuit held that the Sentencing Guidelines were unconstitutional, but that they would continue to be advisory. The court advised trial courts to impose alternative sentences, pending the Supreme Court’s resolution of the issue: one to be effective if the Guidelines survived; another to control if they were jettisoned.

The judge in Smith’s case did just that: 37 months if the Guidelines survived; and 24 months if they did not. The sentence technically imposed was 37 months.

However, Smith did not file a timely notice of appeal. Instead, he waited until the Supreme Court’s opinion issued. In February 2005, he moved the district court to substitute the 24-month term for the 37-month one, because the Supreme Court struck down the Guidelines.

The district court denied the motion, stating that, as far as he was concerned, the Guidelines had survived. The court concluded that the 24-month sentence would be appropriate only if the Supreme Court had rejected the Guidelines entirely and reinstated the system that existed before the Sentencing Reform Act, which Booker did not do.

Smith appealed, but, in an opinion by Judge Frank H. Easterbrook, the Seventh Circuit held that the district court had no jurisdiction to entertain Smith’s motion in the first instance.

18 U.S.C. 3582(c)(1)(B) authorizes a court to modify a sentence “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.”

Related Links

7th Circuit Court of Appeals

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Case Analysis

However, Rule 35 only allows a court to modify a sentence within seven days to correct a technical error, or on the prosecutor’s motion to reward substantial assistance rendered after the sentence was imposed.

The court wrote, “Neither of these circumstances pertains to Smith, nor does any of the exceptions in sec. 3582(c) assist him. Because sec. 3582(c) limits the substantive authority of the district court, it is a real ‘jurisdictional’ rule rather than a case-processing requirement. It is the sort of limit that must be respected, and which we must enforce even if everyone else has ignored it (cites omitted).”

The court also found no authority in Rule 36: “Rule 36 permits a district judge to correct clerical errors in judgments. Fixing a judgment so that it accurately reflects the original sentence does not ‘modify’ the sentence and hence falls outside sec. 3582(c).”

The court also held the “unique circumstances doctrine” of Thompson v. INS, 375 U.S. 384 (1964), inapplicable. The doctrine only applies where a party has received assurance from a judicial officer that an act has been properly done.

Because Smith did not take any specific act, nor did the district judge assure him that an appeal in November 2004 was unnecessary to preserve his rights, the court held the doctrine inapplicable.

Accordingly, the court vacated the decision of the district court, and remanded the case with instructions to dismiss the motion for lack of subject-matter jurisdiction.

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David Ziemer can be reached by email.

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