In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-1638

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RODRICK SMITH,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03 CR 844-10—James F. Holderman, Judge.

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ARGUED FEBRUARY 9, 2006—DECIDED FEBRUARY 23, 2006

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Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge. Rodrick Smith pleaded

guilty to drug offenses and was sentenced in November

2004—between our decision in United States v. Booker, 375

F.3d 508 (7th Cir. July 9, 2004), and the Supreme Court’s,

543 U.S. 220 (Jan. 12, 2005). We held in Booker that the

Sentencing Reform Act of 1984 violates the sixth amendment by giving to judges rather than juries the role of

finding facts that prescribe maximum lawful sentences. The

Supreme Court agreed but added that the Sentencing

Guidelines continue to provide norms to guide judicial

discretion, and that, with the Guidelines reduced to advisory status, judges retain fact-finding duties.
2 No. 05-1638

Our Booker opinion suggested that, pending the Supreme

Court’s resolution of the Sentencing Guidelines’ status,

district judges select alternative sentences: one to be

effective if the Guidelines survived, another to control if

they were jettisoned. Whichever side was aggrieved by the

sentence actually imposed could appeal, and we would

affirm or remand as appropriate after the Supreme Court’s

decision. The district court pronounced such an alternative

for Smith: 37 months if the Guidelines survived, 24 months

if they did not. The sentence actually imposed was 37

months, so Smith was the natural appellant. We would

have held any appeal for the Supreme Court’s decision,

which was imminent.

But Smith did not appeal. Instead he waited until the

Supreme Court’s opinion issued, and in February 2005 he

filed a motion asking the district court to substitute the 24-

month term for the 37-month one. The district court denied

this motion, stating that as far as he is concerned the

Guidelines had survived. A 24-month sentence, he wrote,

would have been appropriate only had the Supreme Court

thrown the Guidelines out the window and reinstated the

system that existed before the Sentencing Reform Act.

Booker did not do that, and the district judge concluded that

37 months is an appropriate sentence for Smith as long as

the Guidelines remain the starting point, as they do. See

United States v. Dean, 414 F.3d 725 (7th Cir. 2005); United

States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).

Smith’s appeal is too late when measured from the date

on which his 37-month sentence was imposed. (The sentence, an unconditional 37 months, left nothing up in the

air, so its imposition was a final and appealable judgment.)

The appeal is timely with respect to the order denying the

motion to reduce the sentence to 24 months, but what

authority is there for a district judge to do that? One

fundamental change made in 1984 was to provide that, once

sentence has been imposed, neither the judge nor a parole
No. 05-1638 3

board may make changes. Prisoners thus know from the

day of sentencing when they may expect to be free, if they

behave in prison and receive a 15% reduction from goodtime credits. The public also knows that sentences are real;

parole early in a term, and other reductions common before

the 1984 legislation, had made the formal sentences look

phony, and sometimes the process had bewildered even the

judges, who could not be sure how much time a defendant

would serve. See United States v. Addonizio, 442 U.S. 178

(1979).

Under the Sentencing Reform Act, district judges have

limited authority to alter sentences after their imposition:

The court may not modify a term of imprisonment once it has been imposed except that—

(1) in any case—

(A) the court, upon motion of the Director

of the Bureau of Prisons, may reduce the

term of imprisonment, after considering

the factors set forth in section 3553(a) to

the extent that they are applicable, if it

finds that—

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of

age, has served at least 30 years in

prison, pursuant to a sentence imposed

under section 3559(c), for the offense

or offenses for which the defendant is

currently imprisoned, and a determination has been made by the Director

of the Bureau of Prisons that the defendant is not a danger to the safety of

any other person or the community, as

provided under section 3142(g);
4 No. 05-1638

and that such a reduction is consistent

with applicable policy statements issued

by the Sentencing Commission; and

(B) the court may modify an imposed

term of imprisonment to the extent otherwise expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal

Procedure; and

(2) in the case of a defendant who has been

sentenced to a term of imprisonment based on

a sentencing range that has subsequently

been lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o), upon motion of

the defendant or the Director of the Bureau of

Prisons, or on its own motion, the court may

reduce the term of imprisonment, after considering the factors set forth in section

3553(a) to the extent that they are applicable,

if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. §3582(c). Rule 35 in turn authorizes a district

judge to modify a sentence within seven days of its imposition to correct a technical error, or on the prosecutor’s

motion to reward substantial assistance rendered after the

sentence had been imposed. Neither of these circumstances

pertains to Smith, nor does any of the exceptions in

§3582(c) assist him. Because §3582(c) limits the substantive

authority of the district court, it is a real “jurisdictional”

rule rather than a case-processing requirement. See

Eberhart v. United States, 126 S. Ct. 403 (2005). It is the

sort of limit that must be respected, and which we must

enforce even if everyone else has ignored it. See United

States v. Lloyd, 398 F.3d 978 (7th Cir. 2005); United States

v. Vega, 241 F.3d 910 (7th Cir. 2001).
No. 05-1638 5

Smith has never worried about the district court’s power

to act on his motion, and the district judge did not discuss

that subject. The prosecutor has given the matter some

thought, but the only source of authority the Executive

Branch has suggested—Fed. R. Crim. P. 36—does not

supply what is necessary. 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 §3582(c). The

prosecutor contends that the judgment entered in November 2004 should be corrected to conform to the oral pronouncement, which was 37 months if the Guidelines should

be sustained by the Supreme Court or 24 if they should be

vitiated.

Yet the district judge did not think the written judgment

in error and did not invoke Rule 36. A term of 37 months is

exactly what the judge wanted. The court did not leave it to

the Director of the Bureau of Prisons to determine, in light

of Booker, whether to release Smith after 24 months.

Instead the judge reserved that decision to himself.

Suppose that the judge had spelled this out—either on

the date he imposed sentence, or later by using Rule 36.

Then the judgment would have read something like: “The

defendant is committed to the custody of the United States

Bureau of Prisons for a total term of 37 months, unless the

Supreme Court of the United States holds the Sentencing

Guidelines to be ineffectual; in that event, this court will

reduce the term to 24 months.” Such a judgment would

reserve a right to modify a sentence. Yet district judges

cannot grant themselves authority that has been withdrawn

by the legislature; the point of §3582(c) is to block postsentencing modifications that district judges want to make,

not to furnish judges with an excuse to deny motions they

would not have granted anyway. So using Rule 36 to insert

a reservation of power into the judgment would not do
6 No. 05-1638

Smith any good; the district judge still could not cut Smith’s

sentence to 24 months.

Imagine some variations on the approach that the

prosecutor suggested. Suppose the district judge, acting in

a case in which he had denied a motion to suppress evidence seized from the defendant’s residence, had written:

“Defendant is committed to the custody of the United States

Bureau of Prisons for a total term of 37 months, unless the

Supreme Court of the United States issues a decision

holding the exclusionary rule applicable to violations of the

fourth amendment’s knock-and-announce principle; should

that occur, the court will reduce the sentence to 24 months.”

That’s not a fanciful possibility. This court has held that

entry without adequate delay after an announcement of

one’s authority to conduct a search can lead to damages but

not suppression, see United States v. Langford, 314 F.3d

892 (7th Cir. 2002), and the Supreme Court has that

question under consideration in Hudson v. Michigan, cert.

granted, 125 S. Ct. 2964 (2005) (argued Jan. 9, 2006). It

might seem sensible to both a defendant and the court to

impose a sentence whose length depends on a condition

subsequent: the outcome of Hudson. Yet at oral argument

both sides agreed that an attempt to reserve the power to

resentence a defendant after Hudson would be ineffectual.

A defendant may appeal and ask us to hold for Hudson, but

a district judge may not grant himself an open-ended period

to revise a sentence in light of new authority.

Or consider this sentence: “37 months in prison, but if

the defendant is well behaved for the first year then 24

months.” Judges regularly used the pre-1987 version of

Rule 35, which permitted reductions within 120 days after

the Supreme Court denied certiorari, to maintain effective

control of a sentence for several years following its imposition and to take account of conduct in prison and other

events that the judge deemed pertinent to rehabilitation.
No. 05-1638 7

Section 3582(c) abolished that power. Yet if Smith and the

prosecutor are correct in this case, then all a district judge

need do to maintain indefinite control over the length of a

defendant’s imprisonment is assert that control in the

judgment, by imposing a condition subsequent. That can’t

be right; we hold that it is not right.

Before wrapping up, we must consider the possibility

that Smith’s notice of appeal could be treated as requesting

direct review of the original judgment, just as if he had

appealed in November 2004 and we had held the proceedings for Booker’s final disposition. A belated appeal could

not be justified by the “unique circumstances doctrine” of

Thompson v. INS, 375 U.S. 384 (1964), which as explained

in Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989),

comes into play “where a party has performed an act which,

if properly done, would postpone the deadline for filing his

appeal and has received specific assurance by a judicial

officer that this act has been properly done.” Smith did not

take any step that, if done properly, would postpone

appealability of his sentence. Nor did the district judge

assure him that an appeal in November 2004 was unnecessary to preserve his rights.

Eberhart suggests that the time limit for appeal is

nothing but a “case processing rule” that a court may

disregard if the party that would benefit from the rule’s

enforcement waives or forfeits its rights. See also Kontrick

v. Ryan, 540 U.S. 443 (2004). The Supreme Court has called

the time limit “mandatory and jurisdictional” dozens of

times, however, and we are reluctant to upset that

understanding—not only because the Justices have cautioned appellate courts to use care in treating such declarations as dicta that may be swept aside, see Eberhart, 126 S.

Ct. at 407, but also because Smith himself does not characterize this as a belated appeal of the sentence imposed in

November 2004. Both sides treat these appellate proceed-
8 No. 05-1638

ings as limited to review of the decision the district court

made in March 2005. Taking them at their word enables us

to leave for another day—when the subject has been fully

briefed—the question whether an untimely appeal may be

entertained with the consent (or after the oversight) of an

appellee.

The decision of the district court is vacated, and the case

is remanded with instructions to dismiss the motion for lack

of subject-matter jurisdiction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-23-06