Court Error – Sentence Modification – Criminal Procedure Rule 36

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7^th Circuit Court of Appeals

Case Name: United States of America v. David McClain

Case No.: 21-2089; 21-2090

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Court Error – Sentence Modification – Criminal Procedure Rule 36

The district court modified David McClain’s two federal prison sentences under Rule 36 of the Federal Rules of Criminal Procedure, and McClain appeals. He contends that the changes—which added 18 months of prison time and required him to re-enter federal prison after he had been released—were not merely clerical. As a result, he argues, they could have been made only under Federal Rule of Criminal Procedure 35. But that avenue for modification was unavailable because the fourteen-day period for altering a sentence had long passed. The government argues that because of clerical errors, the written judgments did not reflect what was orally pronounced at a 2013 resentencing hearing and therefore required a mere clerical “correction” pursuant to Federal Rule of Criminal Procedure 36.

McClain is correct that the changes to his sentences were not merely clerical, and so the district court erred by “correcting” the sentences under Rule 36. We agree and vacate both amended judgments. We have already ordered McClain’s release and now explain our reasoning in greater detail.

Vacated and remanded with instructions

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Derek A Hawkins is Corporate Counsel, at Salesforce.