In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2304

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JERRY L. VINYARD,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05-CR-40065-JPG—J. Phil Gilbert, Judge.

____________

No. 07-2674

In the Matter of:

THE UNITED STATES OF AMERICA,

Petitioner.

____________

Petition for Writ of Mandamus to

the United States District Court

for the Southern District of Illinois.

No. 05-CR-40065-JPG—J. Phil Gilbert, Judge.

____________

ARGUED FEBRUARY 15, 2008—DECIDED AUGUST 20, 2008

____________
2 Nos. 07-2304, 07-2674

Before FLAUM, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. Unsure of the proper procedural

vehicle to use, the Government has brought this case

before us using two alternatives: an interlocutory appeal

(No. 07-2304) and a petition for a writ of mandamus

(No. 07-2674). We conclude that appellate jurisdiction

under 18 U.S.C. § 3731 is problematic, since the district

court did not issue any of the orders described by that

statute. We conclude, however, that this is one of those

rare cases in which a writ of mandamus should issue. We

therefore reserve for another day the question whether

we might have been able to accept this type of case as

an ordinary interlocutory appeal.

I

Jerry Vinyard entered an “open plea” to charges of

manufacturing, distributing, and possessing with intent

to distribute methamphetamine. See 18 U.S.C. §§ 841(a)(1)

and 846. He stipulated that he had a prior felony drug

conviction (from 1984) and also that the conspiracy this

time around involved more than 500 grams—a fact

that increased his mandatory minimum sentence to

240 months.

At sentencing on May 3, 2007, no one had any objections

to the presentence report (PSR), which recommended a

guideline range of 235-293 months’ imprisonment, based

on a finding that Vinyard was involved with 36.5 kilograms of methamphetamine and had possessed a firearm

during the offense. Before imposing the sentence, the
Nos. 07-2304, 07-2674 3

district court agreed to allow Vinyard’s wife to address

the court. She spoke for some time, emphasizing the

effect that a long sentence would have on their 11-year-old

daughter. After his wife spoke, Vinyard for the first time

questioned some of the facts in the PSR having to do with

amounts of anhydrous ammonia involved in the crime. The

district court asked him if he was objecting to the PSR.

Vinyard waffled, seeming to say yes, but noting that he

was not acting on the advice of counsel, who was concerned about Vinyard’s jeopardizing his three-level

reduction for acceptance of responsibility and other

benefits he was expecting. After a brief recess, Vinyard

withdrew any objections, and the district court sentenced

him to the mandatory minimum of 240 months.

At this point, the district court appears to have had

second thoughts. The next day, May 4, without giving

any notice to the Government, he ordered Vinyard’s

release. This caused problems because the order was not

filed until May 7; the Government learned of Vinyard’s

release only when an agent happened to see him walking

into the Probation Office. The Government immediately

filed a notice of appeal of the release order on May 7

(No. 07-2058), and on May 10 it filed a motion to reverse

and vacate the release order. That same day (May 10), this

court entered an order requiring Vinyard to be detained.

The district court responded hours later by sua sponte

vacating Vinyard’s plea and sentence, ordering new

appointed counsel, vacating its release order, and ordering

Vinyard to self-report the next day. This court issued

another order reiterating the immediate detention order.

The Government filed an appeal of the May 10 order
4 Nos. 07-2304, 07-2674

vacating the plea and sentence (No. 07-2304). The appeal

of the release order was dismissed on the ground that it

had become moot.

Along with its appeal of the vacatur, the Government

filed a motion to stay the proceedings with both the district court and the circuit on June 5. On June 13, one day

before the next scheduled status hearing, the district

court granted the motion to stay and amplified on its

reasons for vacating the plea and sentence. On July 17, the

Government filed a petition for a writ of mandamus to

compel the district court to reinstate the sentence it had

pronounced (No. 07-2674).

On August 6, this court ordered briefing on the question

whether the direct appeal “should proceed only in the

related Petition for Mandamus relief” under United States

v. Spilotro, 884 F.2d 1003 (7th Cir. 1989). On November 5,

the direct appeal and the mandamus petition were consolidated for oral argument and disposition.

II

Mandamus is an extraordinary remedy, “issued only in

extraordinary cases.” In re Rhone-Poulenc Rorer, Inc., 51

F.3d 1293, 1294 (7th Cir. 1995). There are two conditions

for issuing a writ of mandamus:

The first is that the challenged order not be effectively

reviewable at the end of the case—in other words, that

it inflict irreparable harm. . . . The petitioner must

ordinarily demonstrate that something about the

order, orits circumstances, would make an end-of-case
Nos. 07-2304, 07-2674 5

appeal ineffectual or leave legitimate interests unduly

at risk. . . . Second, the order must so far exceed the

proper bounds of judicial discretion as to be legitimately considered usurpative in character, or in

violation of a clear and indisputable legal right, or, at

the very least, patently erroneous.

Id. at 1295 (quotations and citations omitted). In addition,

we normally will reject a petition for a writ of mandamus

if the requesting party has an adequate remedy at law.

We believe that all of these conditions are satisfied in this

case.

A. Adequacy of Legal Remedy

There is no need to issue a writ of mandamus if the

normal procedures for error correction would suffice.

Thus, if, as the Government argues in No. 07-2304, this

court has clear appellate jurisdiction over the district

court’s order of May 10, it would be inappropriate to resort

to mandamus. The statute governing appellate jurisdiction in criminal cases is 18 U.S.C. § 3731. To support

jurisdiction in this appeal, the Government relies on

paragraph 1 of the statute, which says:

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or

information or granting a new trial after verdict or

judgment, as to any one or more counts, or any part

thereof, except that no appeal shall lie where the

double jeopardy clause of the United States Constitution prohibits further prosecution.
6 Nos. 07-2304, 07-2674

The district court’s order of May 10 setting aside, on its

own motion, Vinyard’s plea and sentence, is (the Government argues) the functional equivalent of an order “granting a new trial after verdict or judgment.” Therefore, it

concludes, appellate jurisdiction exists under § 3731.

The Government is overlooking the critical qualification

to this power that appears at the end of the paragraph

quoted above: no appeal is permitted if there would be a

double jeopardy problem. Normally, if a district court

grants a new trial after verdict or judgment, it does so

upon the defendant’s motion under FED. R. CRIM. P. 33.

Under those circumstances, there is no double jeopardy

problem if the Government appeals. If it succeeds, then

the original verdict or judgment is simply reinstated; if it

loses, then the defendant receives the new trial that he

or she requested. Here, however, Vinyard never made a

motion under Rule 33: the district court wiped the slate

clean on its own.

Vinyard received due process and jeopardy attached in

his first proceeding once the court pronounced its

sentence—possibly even as early as when it accepted his

guilty plea. See Dawson v. United States, 77 F.3d 180, 182

(7th Cir. 1996). The district court effectively granted him

a new trial without waiting for Vinyard to request this

relief. While double jeopardy can be waived by the defendant, see Ricketts v. Adamson, 483 U.S. 1, 11 (1987), a court

is on much shakier ground finding the protections lost

when the only action is by the prosecution or the court,

Ricketts, 483 U.S. at 23-26 (Brennan, J., dissenting). Justice

Brennan cited United States v. Dinitz, 424 U.S. 600, 609
Nos. 07-2304, 07-2674 7

(1976) (alteration in Ricketts), which says: “the important

consideration, for purposes of the Double Jeopardy

Clause, is that the defendant retain primary control over

the course to be followed in the event of [prejudicial

prosecutorial or judicial] error.” Indeed, in United States v.

Smith, 331 U.S. 469, 474-75 (1947), the Supreme Court

avoided the question whether a grant of a new trial solely

on the court’s own initiative would violate the defendant’s

rights under the Double Jeopardy Clause precisely because it raised such an important and difficult constitutional question. Citing Smith, this court has echoed these

misgivings: “In the absence of a proper motion by the

defendant, a judge obviously cannot presume that a

defendant is waiving his double jeopardy rights and is

willing to be re-tried.” United States v. Scop, 942 F.2d 1004,

1008 (7th Cir. 1991). Vinyard would have a nonfrivolous

claim that a subsequent trial would subject him to

jeopardy and punishment a second time on the same

indictment, which would bar his reprosecution and leave

the Government no way to remedy the matter.

If this case were otherwise unsuitable for mandamus

relief, we would have no choice but to decide once and for

all whether the district court’s actions had the effect of

putting Vinyard twice in jeopardy for his offense. The

district court, at a minimum, created a serious question

whether § 3731 supports jurisdiction over an appeal. This

is enough to support a finding that the remedy at law

may be inadequate. We therefore turn to the other

criteria that govern mandamus relief to see whether it is

proper here.
8 Nos. 07-2304, 07-2674

B. Irreparable Harm

If the district court’s May 4 release order and May 10

vacatur of Vinyard’s plea and sentence were allowed to

stand, irreparable harm of several kinds would arise.

Various potential dangers were demonstrated when the

United States learned of Vinyard’s release only when he

ambled into the Probation Office: his precipitous

release might have allowed him to inflict harm on others,

if he had been armed; he may have absconded; or he

might have slipped away and resumed his methamphetamine dealings.

Even if the Government could somehow prevail against

a double jeopardy defense, there is a possibility that

Vinyard might be acquitted in a second round of proceedings if he insisted on a trial and put the Government

to its proof. Because of the constraints on Government

appeals of criminal convictions, see 18 U.S.C. § 3731, an

acquittal upon retrial would be a “harm” from the Government’s perspective—a conviction it had on May 3 would

have evaporated as a result of the district court’s May 10

order. This is a harm for which there would be no remedy.

These risks of irreparable harm satisfy the requirements

of In re Rhone-Poulenc. The first possibility demonstrates

that the orders “[left] legitimate interests unduly at risk,”

In re Rhone-Poulenc, 51 F.3d at 1295, namely the safety

of prosecutorial personnel and the public. The next two

possibilities show that “the challenged order [would] not

be effectively reviewable at the end of the case,” id., either

because a nonfrivolous double jeopardy challenge bars

the prosecution from the outset or an acquittal leaves
Nos. 07-2304, 07-2674 9

the prosecution with a loss from which it cannot appeal

at all.

C. Judicial Usurpation, Violation of a Clear Right, or

Patent Error

The Government argues that the district court committed

two patent errors in this case: first, a violation of FED. R.

CRIM. P. 35(a), which governs immediate corrections of

sentences; and second, a violation of FED. R. CRIM. P. 11(e),

which addresses the finality of a plea of guilty or nolo

contendere.

1. Rule 35(a)

The district court relied in part on Rule 35(a), which

reads as follows:

Within 7 days after sentencing, the court may correct

a sentence that resulted from arithmetical, technical,

or other clear error.

The district court believed that there were two clear

errors requiring correction: it had failed to inquire sufficiently into prior convictions and warn the defendant

about their impact (as required by 21 U.S.C. § 851(b)), and

it came to believe that the defendant may not have knowingly and voluntarily agreed to the relevant conduct in

the PSR. Neither of these points justifies use of Rule 35(a).

When the Government files an information under § 851,

the court shall after conviction but before pronouncement of sentence inquire of the [defendant] whether
10 Nos. 07-2304, 07-2674

he affirms or denies that he has been previously

convicted as alleged in the information, and shall

inform him that any challenge to a prior conviction

which is not made before sentence is imposed may not

thereafter be raised to attack the sentence.

21 U.S.C. § 851(b). In any case, “[n]o person who stands

convicted of an offense under this section may challenge

the validity of any prior conviction alleged . . . which

occurred more than five years before the date of the

information . . . .” 21 U.S.C. § 851(e). Taken together,

§ 851(b) and (e) allow a prior conviction that might be

used to enhance a sentence to be challenged during the

sentencing phase; a challenge cannot be brought until

the guilt phase is complete, and no challenge is possible

if the conviction is over five years old. Vinyard’s prior

conviction was in 1984, and thus it is covered by § 851(e):

he was no longer entitled to attack its validity at the

time of his sentencing hearing.

The court’s duty to inquire under § 851(b) arises only

after conviction or the acceptance of the guilty plea. A

failure to conduct that inquiry cannot retroactively draw

into question the antecedent guilty plea. At most, an

error here might call the sentence into question. Cf. FED. R.

CRIM. P. 11(b) (listing the items about which a defendant

must be admonished before a guilty plea may be accepted,

but not mentioning § 851 or prior convictions used for

enhancement). The district court’s belief here that it had

not complied properly with § 851(b) cannot be grounds

for applying Rule 35(a) to the guilty plea. If a violation of

§ 851(b) caused the court to misstate the maximum
Nos. 07-2304, 07-2674 11

possible penalty, then there would be a violation of

Rule 11(b)(1)(H), which would be subject to correction

if the defendant wished to set aside his guilty plea and

if he could convince the district court to allow him to

withdraw the plea under Rule 11(d).

The district court’s alleged § 851(b) error would not

warrant relief from the sentence, either. If any potential

collateral attack would be barred by § 851(e), the district

court is under no duty to inquire under § 851(b), United

States v. Arrango-Montoya, 61 F.3d 1331, 1339 (7th Cir. 1995)

(per curiam), even though it is probably good practice to

do so, id. Given that there is no duty, there is no error

justifying the radical action of setting aside the guilty

plea without any request from the defendant.

We say “alleged” error because it is not at all clear on this

record that there was any error at all (or at least anything

that should not be characterized as harmless). Vinyard

unequivocally affirmed the fact of his earlier convictions

during the sentencing proceeding, saying: “I ended up

with the charge because I was guilty.” Although he

expressed reservations about the present charges, he

had no reservations about his prior criminal record.

We also see no error in the district court’s decision to

adopt the findings in the PSR. Although it required a

brief recess so that he could consult with his lawyer,

Vinyard eventually expressly stated that he had no objection to the PSR. Any error relating to the quantity of drugs

would, on this record, have been harmless. The only

issue was whether the amount of methamphetamine

involved in the conspiracy was greater than 500 grams. If
12 Nos. 07-2304, 07-2674

so, the mandatory minimum sentence of 240 months

would be triggered. Vinyard had already stipulated to

at least this amount, and so even if there were some

problem with the PSR, there was sufficient evidence

from other sources that would have supported the same

mandatory minimum sentence—which is, after all, what

Vinyard received in the end.

The district court committed no error that would justify

invocation of its powers under Rule 35(a) to correct a “clear

error,” much less an error that would justify setting aside

the guilty plea, which was entered before any of the

alleged errors took place. Rule 35(a) provides no support

for the court’s action.

2. Rule 11(e)

Rule 11(e) underscores the finality to which a plea of

guilty or nolo contendere is entitled. It states:

After the court imposes sentence, the defendant may

not withdraw a plea of guilty or nolo contendere, and

the plea may be set aside only on direct appeal or

collateral attack.

The district court thought that this provided alternative

support for its action. Once again, we find it to be mistaken.

To begin with, Vinyard never tried to withdraw his

guilty plea; it was the court that pulled it away from him.

Once sentence has been pronounced, the Rule says that it

may be set aside only on direct appeal or collateral attack.
Nos. 07-2304, 07-2674 13

See United States v. Patterson, 381 F.3d 859, 865 (9th Cir.

2004) (“[A]lthough the district court is free to reject the

plea agreement after accepting a guilty plea, it is not free

to vacate the plea either on the government’s motion or

sua sponte. Instead, when the court accepts a guilty plea

but rejects the plea agreement, it becomes the defendant’s

choice whether to stand by the plea or to withdraw the

plea.”). Patterson illustrates that the methods followed

by the district court in this case effectively usurped a

choice that was the defendant’s to make: how to challenge potential problems with his sentence.

The district court acted as if sentence was imposed, for

Rule 11 purposes, only when a written judgment was

filed, but that is incorrect. Oral pronouncement of the

sentence triggers the bar. See United States v. Ogden, 102

F.3d 887, 888-89 (7th Cir. 1996). The sentence was imposed on May 3, and the Rule 11 bar on setting aside

the plea had attached by the June 10 order. The district

court’s order thus violated FED. R. CRIM. P. 11(e).

III

Although mandamus is an extraordinary writ, issuance

of the writ is warranted, among other reasons, in order “to

ensure the proper application of [the Federal Rules of

Criminal Procedure] . . . .” United States v. Igoe, 331 F.2d

766, 768 (7th Cir. 1964). Stepping beyond the limits of those

Rules—either by applying a power not granted or one

expressly excluded—supports use of the writ if irreparable harm has been demonstrated.
14 Nos. 07-2304, 07-2674

We are satisfied that the Government has adequately

shown the possibility of irreparable harm and that issuance of the writ is appropriate under the circumstances

of this case. Our decision to issue the writ renders it

unnecessary for us to reach the Government’s appeal, and

so we have no need to resolve definitively the question

of appellate jurisdiction.

The district court committed patent error in its application of Rules 11(e) and 35(a), and the Government has

demonstrated irreparable harm arising from those errors.

We therefore GRANT the petition to issue a writ of mandamus and VACATE the district court’s May 10 vacatur of the

plea and sentence. We further ORDER that judgment

be entered pursuant to the May 3, 2007 sentence pronounced by the district court, and DISMISS the Government’s appeal as unnecessary.

8-20-08