In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2808

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM ESKRIDGE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 93-CR-15—C. N. Clevert, Judge.

____________

SUBMITTED DECEMBER 13, 2005—DECIDED APRIL 19, 2006

____________

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

POSNER, Circuit Judge. William Eskridge was convicted

in 1992 of federal crimes and was sentenced to two consecutive prison terms to be followed by two concurrent 36-

month terms of supervised release. He violated the terms of

his supervised release in 2002, 2004, and 2005, and each time

was sent back to prison. He appeals from the imposition in

2005 of a 22-month prison term on the basis of his latest

violation. His lawyer moved to withdraw on the ground

that there is no nonfrivolous ground for challenging the

term. Anders v. California, 386 U.S. 738, 744 (1967).
2 No. 05-2808

We think there is a nonfrivolous ground, and in the usual

case that would require us to deny the lawyer’s motion to

withdraw and order counsel to brief the merits before

we could decide the nonfrivolous issue, because to do

otherwise would violate the appellant’s constitutional right

to counsel. Smith v. Robbins, 528 U.S. 259, 277 (2000); Penson

v. Ohio, 488 U.S. 75, 83-84 (1988). But this presupposes that

the appellant has a constitutional right to counsel, and he

may not in a case in which he is complaining not about an

ordinary criminal judgment but about a revocation of

supervised release and concomitant order returning him

to prison. Anders was based not on the Sixth Amendment’s right to counsel, which does not extend to appellate proceedings, Martinez v. Court of Appeal, 528 U.S. 152,

160 (2000), but on the idea, first announced in Douglas v.

California, 372 U.S. 353 (1963), that the equal protection of

the laws requires the government to provide the indigent

with counsel in the initial appeal from a criminal conviction

if the affluent are permitted to appeal with the assistance of

counsel. In the situation, analogous to that presented in this

case, of revoking probation, the Supreme Court has held

that the defendant has a constitutional right to counsel only

if the denial of counsel would violate due process of law,

which ordinarily will be true only if the defendant makes a

colorable claim “(i) that he has not committed the alleged

violation of the conditions upon which he is at liberty; or (ii)

that, even if the violation is a matter of public record or is

uncontested, there are substantial reasons which justified or

mitigated the violation and make revocation inappropriate.”

Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973); see also United

States v. Yancey, 827 F.2d 83, 89 (7th Cir. 1987).

The Court did add that “the responsible agency also

should consider, especially in doubtful cases, whether the

probationer appears to be capable of speaking effectively for
No. 05-2808 3

himself.” 411 U.S. at 790-91; see United States v. Stocks, 104

F.3d 308, 311 (9th Cir. 1997). But we interpret this to be a

reference to cases in which it is unclear whether the two

criteria that constitute the test quoted in the preceding

paragraph have been satisfied. If it is clear that they have

not been satisfied, it is unnecessary to ask whether the

probationer can represent himself effectively. For if that

were a free-standing test of due process, cases (cited below)

that deny a right of counsel in postconviction proceedings

would not make sense, for the issues presented in such

proceedings are often quite beyond the ability of the average

prisoner to address effectively.

We cannot think of any reason for using a different test for

when there is a right to counsel in proceedings to revoke

supervised release from Gagnon’s test of the right to counsel

in proceedings to revoke probation, given the similarity

between the two types of revocation, as we noted in United

States v. Dillard, 910 F.2d 461, 464 n. 2 (7th Cir. 1990) (per

curiam); see also United States v. Jones, 299 F.3d 103, 109 (2d

Cir. 2002). It is true that we assumed in United States v. Goad,

44 F.3d 580, 586, 589 (7th Cir. 1995), that there is a right to

counsel in supervised-release cases, but it was merely an

assumption. The Second Circuit assumed the contrary in

United States v. Pelensky, 129 F.3d 63, 68 n. 8 (2d Cir. 1997),

and the Ninth Circuit is on both sides of the issue. Compare

United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000),

which did not cite Gagnon, with United States v. Soto-Olivas,

44 F.3d 788, 792 (9th Cir. 1995), which did. We now hold

that the proper approach is the one that the Supreme

Court’s Gagnon opinion prescribed for revocation of probation.

Since Eskridge did not deny that he had violated the

conditions of his supervised release or suggest any grounds

in justification or mitigation, due process did not entitle him
4 No. 05-2808

to counsel either in the district court, where in fact he had

counsel by virtue of 18 U.S.C. §§ 3006a(a)(1)(C), (E) (2004 &

Supp. I), and Fed. R. Crim. P. 32.1, or in this court. The

statute, it is true, entitled him to counsel in this court as

well, 18 U.S.C. § 3006A(c), and if his lawyer failed to brief a

nonfrivolous issue this might make his representation of

Eskridge “ineffective” and therefore inconsistent with the

requirement that the Supreme Court has read into the Sixth

Amendment that a criminal defendant’s counsel be effective. But that is of no moment as far as Anders is concerned,

since Eskridge has no Sixth Amendment right to counsel

(nor, unlike Douglas and Anders, a right founded on the

equal protection clause). Pennsylvania v. Finley, 481 U.S. 551

(1987), so held in the analogous case of postconviction

counsel; see also United States v. Kimberlin, 898 F.2d 1262,

1265 (7th Cir. 1990). So we are not precluded from addressing the merits of Eskridge’s appeal and affirming the district

court’s judgment if we determine that the appeal, though

not frivolous, is also not meritorious. Even more clearly, we

are free to reverse. So let us turn to the merits.

When Eskridge was first convicted, the supervised-release

statute provided that a defendant whose release was

revoked could not be reimprisoned for more than two years

if the offense of conviction was merely a Class C or Class D

felony; Eskridge had been convicted of one of each. 18

U.S.C. § 3583(e)(3) (1988 & Supp. IV). This ceiling applied,

moreover, to the aggregate of reimprisonments based on

multiple revocations. United States v. Beals, 87 F.3d 854, 857-

58 (7th Cir. 1996), overruled on other grounds by United

States v. Withers, 128 F.3d 1167 (7th Cir. 1997); United States

v. Merced, 263 F.3d 34, 37 (2d Cir. 2001) (per curiam); United

States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir. 1999)

(per curiam). Before his latest revocation, Eskridge had
No. 05-2808 5

served 14 months in prison for his previous revocations, and

so, since two years equals 24 months, he could not

be sentenced to more than 10 months for the third revocation. Or so it might seem. But there is a wrinkle. To

straighten it out will require a brief excursus into an esoteric

corner of federal criminal procedure.

Congress in 1994 ordained that upon revoking a term

of supervised release, the district court could impose a

prison term followed by more supervised release. 18 U.S.C.

§ 3583(h). Eskridge was originally sentenced in 1992,

however, and in Johnson v. United States, 529 U.S. 694 (2000),

the Supreme Court held that section 3583(h) could not be

applied retroactively. But the Court also held that upon

revocation of a term of supervised release imposed prior to

the enactment of that statute, the district court could impose

a term of reimprisonment and a further term of supervised

release, provided that the sum of the terms did not exceed

the original term of supervised release. When as in this case

supervised release is revoked and the defendant reimprisoned, he gets no credit for time previously served on

supervised release. 18 U.S.C. § 3583(e)(3) (1988 & Supp. IV);

United States v. Withers, supra, 128 F.3d at 1169 n. 3. So while

Eskridge was entitled to 14 months’ credit for the reimprisonment time that he served, he was entitled to no credit for

the portion of the 36 months of supervised release that he

had served before revocation. The same is true with respect

to the portions of the 26-month and 12-month terms of

supervised release that he served after the first and second

revocations, respectively, before they were also revoked.

And so the judge was entitled to impose those terms, even

though the sum of them plus the 14 months of reimprisonment exceeded the original term of supervised release (52 >

36).
6 No. 05-2808

But here is the problem. When Eskridge’s supervised

release was first revoked in 2002, the district judge was

revoking concurrent terms of supervised release because

that is what he had imposed in his original sentencing. But

when he then sentenced Eskridge to 26 more months of

supervised release, he did not indicate in the judgment

order whether these were two (concurrent) terms or one

term. In 2004, he imposed concurrent terms of supervised

release but this was proper only if he was revoking two

terms rather than one. When 2005 arrived and the judge

again revoked supervised release, if he was revoking only

one term of supervised release he could reimprison

Eskridge for only 10 more months because Eskridge had

already served 14 months of reimprisonment. For remember

that the maximum reimprisonment, regardless of the

number of revocations of supervised release, is 24 months.

The reason it matters whether the 26 months of supervised

release represented one term or two concurrent terms is that

consecutive terms of imprisonment may be imposed upon

revocation of concurrent terms of supervised release. United

States v. Deutsch, 403 F.3d 915, 917 (7th Cir. 2005) (per

curiam). So if in 2002 the district judge actually imposed

two terms of supervised release, he had two terms that he

could revoke in 2004 and 2005 and he could then have

ordered Eskridge to serve consecutive 10-month prison

terms without violating the 2-year maximum. (Of course

two consecutive 10-month terms don’t add up to 22 months,

the sentence that the judge imposed, but only to 20 months.

We do not know what the judge was thinking; but as will

become apparent, this mystery need not be unraveled.)

In United States v. Gresham, 325 F.3d 1262, 1263 and n. 1

(11th Cir. 2003), the defendant had pleaded guilty to five

counts of bank robbery and had been sentenced to

87 months in prison followed by 60 months of supervised
No. 05-2808 7

release. The court of appeals interpreted the sentence of

supervised release as having been imposed on each count,

to run concurrently. It wouldn’t have made any sense

for the judge to have imposed supervised release on only

one count. That is equally true in this case, especially

when the judge had imposed concurrent terms of supervised release on each of the two counts of conviction, both

in his original sentencing and in his second revocation of

supervised release. (The third time he merely ordered

Eskridge reimprisoned; he did not impose a further term of

supervised release.)

If the failure of the judgment order to state that the

judge was imposing two (concurrent) terms of supervised

release in the first revocation was merely a clerical error—

that is, if the court announced two new terms but the

clerk who typed the 2002 judgment included just one— then

Rule 36 will allow correction even now. United States v.

Smith, 438 F.3d 796, 799-800 (7th Cir. 2006). But if the order

accurately reflects the judge’s decision, however mistaken,

to impose just a single term, it cannot be corrected because

none of the statutory provisions authorizing the sentencing

judge to modify a sentence that he has imposed is applicable

to this case. Absent those, a district judge may still correct

a final judgment in a criminal case to reflect the sentence he

actually imposed but he cannot change the sentence he did

impose even if the sentence was erroneous. Id.; United States

v. Daddino, 5 F.3d 262, 264-65 (7th Cir. 1993) (per curiam);

United States v. Layman, 116 F.3d 105, 108-09 (4th Cir. 1997);

United States v. Werber, 51 F.3d 342, 346-49 (2d Cir. 1995).

To resolve the issue of clerical error versus judicial error,

we sent for the transcript of the sentencing hearing. United

States v. Becker, 36 F.3d 708, 710 n. 2 (7th Cir. 1994). There we

discover that in imposing supervised release in the

first revocation the judge stated: “Because of the short
8 No. 05-2808

term imposed in this matter the court is going to also

continue you on supervised release for a term of 26

months.” A term. This was the sentence and it was accurately reflected in the written judgment, which means that

the judge could not impose consecutive 10-month terms

of imprisonment when Eskridge again violated the terms of

his supervised release. The judgment must therefore

be vacated and the case remanded for resentencing.

We deny the motion of Eskridge’s lawyer to withdraw

as counsel, since Eskridge has a statutory right to counsel in

subsequent proceedings in this case both in the district court

and if necessary in this court.

VACATED AND REMANDED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-19-06