United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 16, 2008

Decided August 21, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 07-2976 & 07-2988

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANA C. MERINO,

Defendant-Appellant.

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 07 CR 66 -1

Robert W. Gettleman, 

Judge.

O R D E R

Dana Merino waived indictment and pleaded guilty to a one-count information

charging him with sending a threatening communication in interstate commerce. See 18

U.S.C. § 875(c). During contract litigation with Wilson Sporting Goods, Merino had sent

letters to Wilson employees threatening to kill them if this court affirmed the dismissal of

his complaint. See Merino v. Wilson Sporting Goods Co., 235 Fed. App’x 369 (7th Cir. 2007). 

When arrested Merino was carrying a loaded gun in his car, and he already had acquired

the addresses, phone numbers, and dates of birth of the people he had threatened. At

sentencing the district court orally imposed a 10-month term of imprisonment, but that

term was reduced to 167 days—time served in pretrial detention—in the second of three

written judgments later entered by the court. These consolidated appeals arise from the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
Nos. 07-2976 & 07-2988 Page 2

second and third judgments, but appointed counsel believes the appeals are frivolous and

has moved to withdraw under Anders v. California, 386 U.S. 738 (1967). We invited Merino

to comment on counsel’s submission, see CIR. R. 51(b), and in what Merino labels a “blind

reply” he openly admits that he received but did not read counsel’s Anders brief. Counsel’s

brief is adequate, and Merino’s reply adds nothing of substance.

To address counsel’s motion we must first sort through the procedural history. The

district court conducted Merino’s sentencing hearing on August 3, 2007, and orally

imposed a 10-month term of imprisonment, with the first 167 days to be served in custody

and the remainder in home confinement. The court also imposed a three-year term of

supervised release, with no mention of home confinement during supervised release. At

the sentencing hearing the district court also considered whether electronic monitoring

would be appropriate during the period of home confinement, but ultimately decided to

leave that decision to the probation office. That same day the court issued a written

judgment committing Merino to the custody of the Bureau of Prisons “to be imprisoned”

for a total of “ten months,” with the “first 167 days” to be “spent in custody” and “the

remainder . . . to be spent in home confinement.” The written judgment also imposed a

three-year term of supervised release to commence upon Merino’s “release from

imprisonment.” The clerk’s office entered this first judgment on August 8.

Two more judgments followed, both sua sponte. The first, which was issued on

August 7 and entered by the clerk of the district court on August 9, purports to correct a

clerical mistake under the authority of Federal Rule of Criminal Procedure 36. This

judgment altered the term of imprisonment from 10 months to 167 days and directed that

Merino be released “forthwith.” The judgment also reimposed the three-year term of

supervised release but added a directive that Merino serve the “first 4 and 1⁄2 months” of

his supervised release “in home confinement without electronic monitoring.” Then on

August 21 the district issued its third judgment, again under the authority of Rule 36. This

judgment is identical to the second, except that the period of home confinement was now

to be “with electronic monitoring.”

On August 17, 2007, after the district court had issued its second judgment, Merino

filed a pro se notice of appeal. His notice of appeal does not reference either of the first two

judgments but does make plain that he wanted to “appeal his guilty plea.” We docketed

this appeal as case no. 07-2966. On August 20 counsel filed a second notice of appeal, this

one “from the final judgment entered in this action on the 9 day of August, 2007.” We th

docketed this appeal as case no. 07-2976. Then on August 22 counsel filed a third notice of

appeal, this one from the judgment issued on August 21. We docketed this last appeal as

case no. 07-2988.
Nos. 07-2976 & 07-2988 Page 3

On August 27, this court conducted a jurisdictional screening, consolidated the two

appeals filed by counsel, and issued an order explaining that “preliminary review”

indicated that Merino’s pro se appeal “duplicates later, timely appeals filed by counsel.” 

We directed counsel (who no longer represents Merino) to either dismiss case no. 07-2966

voluntarily or else file a memorandum explaining why we should not dismiss the appeal as

unnecessary. Counsel did neither, and on October 3, 2007, we dismissed that appeal and

noted that “Merino’s appeal from his conviction and sentence will proceed under Appeal

Nos. 07-2976 and 07-2988.”

This last statement was made without the benefit of the full record, and we question

whether it is correct. Only Merino’s pro se notice of appeal makes reference to the guilty

plea underlying the first of the district court’s three judgments, but that appeal has been

dismissed. The third appeal has long been moot; that case arises not from a clerical

correction under Rule 36 but from a substantive modification of a condition of supervised

release. See 18 U.S.C. § 3583(e)(4); United States v. Navarro-Espinosa, 30 F.3d 1169, 1171 (9th

Cir. 1994). The new condition—the requirement of electronic monitoring during Merino’s

home confinement—expired when the 41⁄2 months of home confinement ended. So that

leaves only case no. 07-2988, and unless we ignore the designation by counsel, see FED. R.

APP. P. 3(c)(1)(B), that appeal calls up only “the final judgment entered . . . on the 9 day of

th

August, 2007.” 

That judgment was purportedly authorized by Rule 36. But that cannot be right,

because the second judgment did more than correct a clerical error in the original

judgment. The original judgment tracked the oral pronouncement of sentence, so it cannot

be characterized as mistaken. See United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005)

(explaining that oral pronouncement of sentence controls if written judgment is

inconsistent); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998) (same). The

judgment entered on August 9 reduced the term of imprisonment from 10 months to 167

days, but Rule 36 provides for the correction of “clerical errors,” not for wholesale changes

to the terms of a sentence or for the correction of errors the court itself made in

pronouncing sentence. See United States v. Becker, 36 F.3d 708, 710 (7th Cir. 1994); United

States v. Daddino, 5 F.3d 262, 264-65 (7th Cir. 1993). The district court did not offer, nor can

we divine, any conceivable jurisdictional predicate for its second judgment. See United

States v. Smith, 438 F.3d 796, 799 (7th Cir. 2006); Romandine v. United States, 206 F.3d 731, 735

(7th Cir. 2000). 

The revised sentence stands since it is not challenged by the government,

see Romandine, 206 F.3d at 737, but because the alteration was made without jurisdiction,

Merino’s appeal from the second judgment does not call into question his underlying guilty

plea, which is at the center of the only potential issues counsel has identified. “An appeal
Nos. 07-2976 & 07-2988 Page 4

from an order amending an earlier judgment does not independently bring before us the

merits of the original decision.” LeBeau v. Taco Bell, 892 F.3d 605, 608 (7th Cir. 1989). If this

was not the case, defendants could defeat the time limits for filing a notice of appeal merely

by asking the district court to enter a new judgment. See FED. R. APP. P. 4(b), LeBeau, 892

F.3d at 608.

In any event, even if Merino’s appeal from the second judgment confers jurisdiction

for us to evaluate his guilty plea, we agree with appellate counsel that any challenge to that

plea would be frivolous. Merino did not move to withdraw his guilty plea in the district

court; he threatened to do so in various pro se filings but then changed lawyers and

abandoned all objections to his plea. See United States v. James, 487 F.3d 518, 527-28 (7th Cir.

2007); United States v. Traeger, 289 F.3d 461, 471 (7th Cir. 2002). Our review thus would be

for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo,

467 F.3d 630, 632 (7th Cir. 2006). The only technical error in the plea colloquy is that

Merino was not told of his right to counsel, see FED. R. CRIM. P. 11(b)(1)(D), but he was

represented by appointed counsel at the hearing, so he must have known of this right, and

the omission was harmless, see United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir. 1988).

Because counsel has not identified any nonfrivolous issues on appeal, we GRANT

the motion to withdraw and DISMISS the appeals.