In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-3947 & 08-2481

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LUIS A. PEREZ,

Defendant-Appellant.

 

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 CR 387—Virginia M. Kendall, Judge.

No. 87 CR 354—Ruben Castillo, Judge.

 

ARGUED APRIL 1, 2009—DECIDED APRIL 28, 2009

 

Before POSNER, EVANS, and TINDER, Circuit Judges.

EVANS, Circuit Judge. Luis Perez is no stranger to the

criminal justice system. Originally convicted and sentenced

on federal drug charges following a 1987 jury trial in the

Northern District of Illinois, see United States v. Perez, 870

F.2d 1222, 1225 (7th Cir. 1989), Perez extended his time in

custody through a 1993 prison assault, see United States v.

Perez, 79 F.3d 79, 80 (7th Cir. 1996); United States v. Perez, 43
2 Nos. 07-3947 & 08-2481

F.3d 1131, 1132 (7th Cir. 1994), and, most recently, a

violation of the conditions governing his supervised

release. Perez now asks us to modify this most recent

sentence—actually, sentences, as we shall explain—due to

various procedural irregularities.

The complications arise from the fact that not one but two

district judges were responsible for ensuring Perez’s good

behavior while on supervised release. Judge Ruben Castillo

managed the docket from Perez’s original conviction in

1987 (N.D. Ill. Case No. 87-CR-354), but a new file was

opened when Perez was charged with attacking his

cellmate (W.D. Wis. Case No. 93-CR-8). Because the attack

occurred at the Federal Correctional Institution at Oxford,

Wisconsin, it was prosecuted in the Western District of that

state. When Perez was finally released from prison in 2006,

however, he returned to the Chicago area, and the Wisconsin case was transferred to the Northern District of Illinois.

It was assigned a new docket number (N.D. Ill. Case No.

07-CR-387) and placed in the hands of Judge Virginia

Kendall. So by the time 2007 rolled around, we had two

judges monitoring Perez—too much of a good thing, as it

turns out.

It wasn’t long before Perez found his way back into

trouble. He failed to attend psychotherapy appointments

in 2006; failed several mandatory drug tests in that and the

following year; was arrested by Chicago police officers in

February 2007 for threatening his wife; and finally was

arrested on two later occasions (May 13, 2007, and June 28,

2007) for violating a protective order designed to ensure

his family’s safety. When the probation department
Nos. 07-3947 & 08-2481 3

reported these events to Judges Castillo and Kendall in the

summer of 2007, both judges scheduled revocation hearings. There was nothing technically improper about

that—the supervised release orders pertained to two

separate cases—but, pragmatically, things would get

tricky. Consolidating the cases would probably have been

a better way to proceed but that, alas, didn’t happen.

Judge Kendall ruled first. On August 6, 2007, following

an evidentiary hearing, she revoked Perez’s release on

supervision and sentenced him to 14 months imprisonment

to be followed by a fresh, 22-month term of supervised

release. That ruling, however, was short-lived. At Perez’s

request, Judge Kendall reconsidered her decision and held

a new hearing. It didn’t work out too well for Perez. After

receiving new evidence of a veiled threat against a probation officer, Judge Kendall decided Perez deserved more

time behind bars: 24 months instead of 14 (followed by

12 months of supervised release). Perez immediately

appealed the new sentence arguing, ironically enough, that

the court lacked jurisdiction to change the sentence. More

on this later.

In the meantime, Judge Castillo held a series of hearings

to determine the consequences for Perez in the other

criminal case. The same basic evidence was presented, and

Judge Castillo came to a similar conclusion in an oral

ruling handed down on May 9, 2008: Perez needed more

time in prison. But at this point things get fuzzy. Judge

Castillo was aware that Perez had appealed Judge Kendall’s modified sentence and, according to Perez, the length

of Judge Castillo’s sentence hinged on the outcome of that
4 Nos. 07-3947 & 08-2481

 That translates into 31 months—the figure noted in the 1

judgment—when counting credit for time served in connection

with Judge Kendall’s case.

appeal. In Perez’s view, premised on the original oral

ruling, Judge Castillo intended to sentence him to 12

months imprisonment, to be served consecutively to Judge

Kendall’s sentence regardless of whether the latter sentence

was upheld or vacated on appeal. Under this view, Perez

would spend less total time in prison if Judge Kendall’s

original sentence were reinstated; more if the sentence, as

modified, held up. The government, on the other hand,

relying on later statements by Judge Castillo and the final

written judgment issued on June 25, 2008, contends that

Judge Castillo wanted his sentence to be completely

unaffected by the outcome of the appeal. He meant for

Perez to stay in jail for a total of 36 months, period.1

Just reciting all this is dizzying. It’s no wonder the

parties are confused—so are we. But we have a solution.

First off, we can make short work of the appeal regarding

Judge Kendall’s modified sentence. The government agrees

that she lacked jurisdiction to reopen the revocation

proceedings; like Perez, it urges us to reinstate the original

sentence of 14 months imprisonment and 22 months

supervised release. We have no other option. Because

Judge Kendall modified the sentence in a substantive way

well beyond the seven-day period set forth in Rule 35(a) of

the Federal Rules of Criminal Procedure, the change fails,

at a minimum, for want of jurisdiction. See United States v.

Goode, 342 F.3d 741, 743 (7th Cir. 2003); cf. Fed. R. Crim. P.

36 (authorizing correction of clerical errors at any time).
Nos. 07-3947 & 08-2481 5

Yet the parties still cross swords over Judge Castillo’s

sentence. After reviewing the transcripts and filings, we

cannot say with certainty exactly what Judge Castillo

intended. We shall therefore vacate the sentence and

remand the matter to Judge Castillo so he can craft a new

sentence reflecting his original intent. See United States v.

Daugherty, 269 U.S. 360, 363 (1926) (“Sentences in criminal

cases should reveal with fair certainty the intent of the

court and exclude any serious misapprehensions by those

who must execute them.”); United States v. Bullock, 857 F.2d

367, 372 (7th Cir. 1988) (remanding where sentence was

unclear); United States v. Garza, 448 F.3d 294, 302 (5th Cir.

2006) (same). To the extent the parties also take issue with

the supervised release component of Judge Castillo’s

sentence, that, too, may be cleared up on remand.

The amended sentence imposed by Judge Kendall is

VACATED, and the original sentence is REINSTATED. The

sentence imposed by Judge Castillo is VACATED, and the

case is REMANDED for resentencing.

4-28-09