calculation it stated in its version of the offense and which it
also solicited from defendant in testimony in another criminal
case. Defendant contends that "low-end of the applicable
sentencing guideline range," as used in the Plea Agreement, means
210 months and that he is entitled to enforcement of the terms of
his Plea Agreement, On the merits, the government contends that
"the applicable sentencing guideline range” is the 262-327 months
that was determined by the court to be the correct sentencing
guideline range. The government, however, contends that the
court should not address the merits of the motion because, under
the Plea Agreement, defendant has waived the rights both to
appeal and to pursue a motion under 28 U.S.C. § 2255. The
government also contends any appeal is untimely because the
motion was filed more than 10 days after judgment. Additionally,
the government contends that defendant cannot bring a pro se
motion because he is represented by counsel.

Although not raised by the government, this court lacks
jurisdiction for another reason. Because it is jurisdictional,
this ground must be raised by the court even though not raised by
the parties. United States v. Smith, 438 F.3d 796, 799 (7th Cir.
2006). A district court's jurisdiction to modify a sentence
after it has been imposed is limited to the situations set forth
in 18 U.S.C. § 3582(c), which includes as expressly permitted in
a statute or Fed. R. Crim. P. 35. 18 U.S.C. § 3582 (c) (1) (B);

Smith, 438 F.3d at 799. The only statute suggested by the



There is no separate inherent authority to reconsider a
sentence that has been imposed. See Smith, 438 F.3d at 799;

United States v. Diaz-Clark, 292 F.3d 1310, 1315-18 (11th Cir.

2002), cert. denied, 539 U.S. 951 (2003), United States v.

Morales, 328 F.3d 1202, 1205 (9th Cir.), cert. denied, 540 U.S.

993 (2003). This court is without jurisdiction to consider
defendant's motion for reconsideration. The motion will be
denied without prejudice for lack of jurisdiction.

IT IS THEREFORE ORDERED that defendant's motion for
reconsideration and reargument of judgment in a criminal case
imposing sentence on defendant herein [58] is denied without
prejudice for lack of jurisdiction, If defendant wishes to
appeal this order, he must file a Notice of Appeal to the United
States Court of Appeals for the Seventh Circuit with the Clerk of
the Court, United States District Court for the Northern District
of Illinois, 219 South Dearborn Street, 20th Floor, Chicago,
Tllinois 60604, within ten (10) days of the entry of the judgment

in this case.

ENTER:

Willem T bes

UNITED STATES DISTRICT JUDGE

ATED: JuNE 24 , 2006


half the low-end of the range recommended in the presentence
report. Both the government and defense counsel!’ agreed that the
low-end of the sentencing range that should be used was the 262
months recommended by the probation officer, At the sentencing,
the court noted the difference between the government's suggested
calculation and the probation officer's calculation. The court
provided defense counsel with the opportunity to argue that a
lower sentence be imposed, but the parties agreed that the
131-month term of incarceration was the only appropriate sentence
under the Rule 11(c) (1) (C) Plea Agreement. Defendant himself was
present during this discussion and raised no objection.

On Wednesday April 19, 2006, defendant was sentenced to a
131-month term of incarceration. The judgement was entered on
the docket on May 3, 2006.

On May 2, 2006 defendant's pro se motion for reconsid-
eration and reargument was received. The motion is dated
April 27, 2006. The "Declaration of Mailing" states that
defendant placed a postage-paid envelope containing the motion in
a prison mailbox on April 28, 2006, This statement is accepted
as true. Defendant seeks reconsideration of the sentence imposed
and specific performance of the Plea Agreement. Defendant

contends that the government is bound by the 210-262/105-month

tat sentencing, defendant was represented by a different
attorney than the one who had represented him during plea
negotiations. The original attorney had passed away prior to
sentencing.


parties is the government's mention of 18 U.S.C. § 2255.
Defendant, however, does not contend he is bringing such a
motion. A court should be reluctant to recharacterize a motion
as one pursuant to § 2255, see Romandine v. United States,

206 F.3d 731, 736 (7th Cir. 2000), and may only do so after
giving the defendant notice and the opportunity to withdraw the

motion, Carter v. United States, 312 F.3d $32, 832-33 (7th Cir.

2002). Moreover, it is doubtful that defendant intended to file
a § 2255 motion before the time for appeal had even begun to run?
and there are no allegations of ineffective assistance of counsel
that would probably be a necessary element of any potentially
successful § 2255 motion by defendant. The motion will not be
construed as a § 2255 motion.?

Defendant's motion could be treated as one pursuant to
Fed. R. Crim. P. 35(a), which provides: "Within 7 days after
sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error." This provision,
however, is a “very narrow" provision for correcting “obvious”

technical errors, United States v. Porretta, 116 F.3d 296, 300

’contrary to the government's contention that the time
to file an appeal had already expired, it had net. The time
did not even begin to run until the judgment was entered on the
docket the day after defendant's motion was received. See

Fed. R. App. P. 4(b) (1) (A) (I)? Vasquez-Ruiz v. United States,
2004 WL 783409 *2 (N.D. J1l, Jan. 20, 2004).

No opinion is expressed regarding the merits of any
potential § 2255 motion nor whether any potential motion is
waived under the terms of the Plea Agreement.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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UNITED STATES OF AMERICA,
Plaintiff,
v. No. 02 CR 206-1

MARK HALL,

Defendant.

MEMORANDUM OPINION AND ORDER

In accordance with a plea agreement, defendant Mark Hall
pleaded guilty to one count of a superseding information charging
him with conspiring to knowingly and intentionally possess more
than 50 grams of a mixture containing cocaine base and more than
five kilograms of a mixture containing cocaine in violation of
21 U.S.C. §§ 84] (a) (1) and 846. As part of the plea agreement,
defendant agreed to cooperate with the government, including by
providing truthful testimony if called upon to testify at any
criminal proceedings. Assuming full and truthful cooperation,
the government agreed to make a motion pursuant to U.S.5.G.

§ 5K1.1 and 18 U.S.C. § 3553(a) requesting that the sentencing

court depart downward. Pursuant to Fed. R. Crim. P. 11(c) (1) (C)


(7th Cir. 1997); 3 Fed. Prac. & Proc. Crim. 3d § 585.2 at 646
(2004). It is, however, unnecessary to determine whether
defendant's claimed error would satisfy Rule 35{a)'s clear error
standard because the motion is untimely. The seven-day period
under Rule 3(a) is measured from the date the sentence is orally
announced. Fed. R. Crim. P. 35(c).* Under Fed. R. Crim. P.
45(a), intervening weekends and holidays are not counted, United
States v. Wisch, 275 F.3d 620, 626 (7th Cir. 2001). Since
defendant's sentence was announced on Wednesday April 19, 2006,
the seven-days expired on Friday, April 28, 2006, Defendant did
place his motion in the mail that day and, under the prisoner
mailbox rule, the motion could be considered to have been filed
that day. See Edwards v. United States, 266 F,3d 756, 758 (7th
Cir, 2001), However, it is not sufficient that a Rule 35(a)
motion is filed within seven days; the court must act on the
motion within the seven-day period or jurisdiction to take action

under Rule 35(a) is lost. Wisch, 275 F.3d at 626, This court

did not even receive the motion until May 2, 2006 and therefore
had no possibility of granting any relief within the seven-day
period that is permitted. This court is without jurisdiction to

grant relief on a Rule 35(a) motion.

‘The Seventh Circuit had construed a prior version of
Rule 35 as measuring the seven-day period from the date the
judgment is entered on the docket. United States v. Wisch,
275 F.3d 620, 626 (7th Cir. 2001). The Rule was amended
effective December 1, 2004 to expressly provide that the
seven-day period is measured from the date the sentence is
orally announced.



the parties agreed that the sentence of custody should be "50% of
the low-end cf the applicable sentencing guideline range." Based
on facts known to the government and stipulated in the Plea
Agreement, the "preliminary" Guidelines calculation was a
Criminal History Category of IV and a Total Offense Level of 37.
The Plea Agreement does not expressly state the sentencing
guideline range for custody represented by that Criminal History
and Offense Level. The range would be 292 to 365 months!
custody. Fifty per cent of the low-end would have been 146
months,

The Plea Agreement provides in part:

[7] (m) Defendant and his attorney and
the government acknowledge that the above
calculations are preliminary in nature and
based on facts known to the government as of the
Lime of this Agreement. Defendant understands
that the Probation Department will conduct
its own investigation and that the Court
ultimately determines the facts and law
relevant to sentencing, and that the Court's
determinations govern the final Sentencing
Guideline calculations.

8. Errors in calculations or interpretation
of any of the guidelines may be corrected by
either party prior to sentencing, The parties
may correct these errors or misinterpretations
either by stipulation or by a statement to the
probation office and/or Court setting forth
the disagreement as to the correct guidelines
and their application. The validity of
this Agreement will not be affected by such
corrections, and defendant shall not have a
right to withdraw his plea on the basis of such
corrections.



Thereafter, defendant cooperated with the government. At
some point, the government (and presumably defense counsel)
recognized that certain convictions included in the Criminal
History calculation should not have been assigned points because
they were part of the offense charged. Based on that revision,
defendant's Criminal History Category was I. A Criminal History
Category of I and a Total Offense Level of 37 produces a
sentencing range of 210 to 262 months' custody. Half of the
low-end would be 105 months. This is the sentence that, assuming
adequate cooperation, the parties assumed defendant would
receive. When testifying at a criminal trial as part of his
cooperation, the federal prosecutor solicited from Hall that his
sentence under the Plea Agreement would be 105 months. In the
government's version of the offense submitted to the probation
officer for purposes of Hall's presentence investigation, the
government explained the error in the Plea Agreement, indicated
that Hall had provided substantial cooperation, and stated that
the applicable sentencing range would be 210-262 months with a
recommended sentence of 105 months' incarceration.

During the presentence investigation, the probation
officer discovered additional prior convictions that resulted in
defendant's Criminal History Category being III. The sentencing
range for Category III and a Total Offense Level of 37 is 262
to 327 months, half of which is 131 months. At the time of

sentencing, the government moved for a downward departure to