In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1323

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DANIEL C. BURTON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 0317—Blanche M. Manning, Judge.

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ARGUED MAY 6, 2008—DECIDED SEPTEMBER 11, 2008

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Before EASTERBROOK,Chief Judge, and WOOD and TINDER,

Circuit Judges.

WOOD, Circuit Judge. Daniel Burton pleaded guilty

to committing five bank robberies, see 18 U.S.C. § 2113(a),

and conspiring to commit bank robbery, see 18 U.S.C.

§ 371, after he and his confederates were caught trying

to rob the same bank for the second time, using exactly

the same kind of loot bag as they had used before. The

district court accepted the plea on September 19, 2006.
2 No. 07-1323

Before his sentencing hearing on January 31, 2007, Burton

raised two objections to his presentence report (PSR). He

reiterated those objections at the hearing, and also addressed the considerations outlined in 18 U.S.C. § 3553(a).

After Burton was finished, the district court accepted

the findings laid out in the PSR and sentenced him to

the top of the range suggested by the Sentencing Guidelines, 188 months.

The problem that gave rise to this appeal arose from

the manner—or perhaps more accurately the timing—of

the district court’s explanation of its sentencing decision.

When it orally pronounced the sentence, the court explained itself as follows:

Well, Mr. Burton, it does appear that you have—well,

number one, I must acknowledge that you appear to

be an extremely intelligent young man. Just looking

at your writings and what have you, it seems unfortunate that you did not develop whatever talents you

have to [do] something more positive in life.

It’s really most distressing to see somebody lead

the kind of life that apparently you have, and it could

have been so much better, it seems. Just listening

to you in the time that you’ve appeared before me

and in your writings, et cetera, it seems to me that you

have a lot of potential, and that’s most unfortunate.

In any event, I have to agree with the Government,

Mr. Burton. You have an extremely checkered past.

Even in this particular case, the numbers involved,

I keep taking into account that there is nobody suggesting you had a gun, but the inference was there
No. 07-1323 3

when you were committing the acts that you were

scaring people. You were trying to make people think

that you had a gun. You know, your conduct in this

case has just been totally unaccepted [sic].

On February 12, the court docketed its judgment and

appended an additional two pages, made available to the

parties, entitled “Statement of Reasons [Not for Public

Disclosure].” Burton had filed a notice of appeal ten days

earlier, on February 2, but, under FED. R. APP. P. 4(b)(2),

that notice was deemed filed as of February 12. The

next day, the appeal was docketed in this court; shortly

thereafter, Burton’s trial counsel withdrew, and on February 21 briefing in this court was suspended.

Burton’s appeal is based on the fact that the district

court decided to file a more complete sentencing memorandum on March 26, long after the case was before

this court. The five-page memorandum reiterated that the

sentence was for 188 months’ imprisonment and repeated

what the district court had said about the objections to

the PSR. The explanation in the March 26 memorandum

of the court’s assessment of the § 3553(a) factors, was, at

a minimum, much more thorough than the reasons the

court had offered orally, even though both supported

the same outcome: a top-of-the-range sentence. Whether

the memorandum was substantively different is a bone

of contention between the parties. Importantly, however, nothing the district court did after the oral pronouncement of the sentence changed its final judgment:

the court consistently said that Burton’s sentence was

for 188 months. Burton has limited his arguments on
4 No. 07-1323

appeal to two questions relating to the memorandum:

first, whether the district court had jurisdiction to enter it

at all, and second, whether he was deprived of his right

to be present at a critical phase of his trial when the

court entered it without giving him an opportunity to

participate somehow in the process.

This court appointed counsel to assist Burton on

appeal, and we appreciate counsel’s efforts. Whether the

district court retained the power to enter the memorandum when it did is a jurisdictional question that we

review de novo. United States v. Daddino, 5 F.3d 262, 264,

(7th Cir. 1993). We also decide for ourselves whether, if

this is relevant, the March 26 memorandum adequately

reflected the reasons given at the sentencing hearing,

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

and whether the defendant was deprived of his right to

be present at a crucial stage of the proceedings, United

States v. Smith, 31 F.3d 469, 471 (7th Cir. 1994).

For the most part, the filing of a notice of appeal shifts

jurisdiction from the district court to the court of appeals.

See Griggs v. Provident Consumer Discount Co., 459 U.S. 56,

58 (1982). But there are exceptions to that rule. Griggs

acknowledges that the district court is deprived of jurisdiction over only “those aspects of the case involved in

the appeal.” Id. Ancillary issues, such as attorney’s fees,

may still be dealt with by the district court even after

an appeal has been lodged. The district court may also

issue orders “in aid of the appeal, to correct clerical

mistakes under [FED. R. CRIM. P. 36], or in aid of execution

of a judgment that has not been stayed or superseded.”
No. 07-1323 5

Henry v. Farmer City State Bank, 808 F.2d 1229, 1240 (7th

Cir. 1986) (citing 9 MOORE’S FEDERAL PRACTICE ¶ 203.11, at

3-44 to 3-46). The crucial question in this case is therefore whether the district court was authorized to file

the sentencing memorandum when it did.

We concluded that as long as the later statement does

not in any way change the judgment of the court, the

district court is entitled to enter it. We appreciate the

fact that district courts may not be prepared at the time

of a sentencing hearing to file, at the same moment, a

fully considered written memorandum explaining the

chosen sentence. But that is why a few days often pass

between the oral pronouncement of a sentence and the

docketing of the district court’s judgment. The court is

free—indeed, encouraged, see United States v. Higdon, 531

F.3d 561, 565 (7th Cir. 2008)—to file a written memorandum up to the time when the judgment is entered on its

docket, and even thereafter, if a proper post-judgment

motion has been filed. But even this kind of sentencing

memorandum cannot effect a substantive change from

the one announced at the hearing. As we often have

noted, “[t]he rule in such situations is clear: If an inconsistency exists between an oral and the later written

sentence, the sentence pronounced from the bench controls.” United States v. Alburay, 415 F.3d 782, 788 (7th Cir.

2005) (quotation marks omitted).

Logically, there are three possibilities that might describe the March 26 memorandum: either it replicates

the oral sentence for all practical purposes, or it expands

on the judge’s reasoning without changing the ultimate
6 No. 07-1323

judgment, or it modifies the judgment. The district court

was without authority to make any substantive change

in the sentence after the appeal was lodged in this court,

and so it is easy to see why the memorandum must be

stricken if the last situation holds. As we have said,

however, that possibility is easy to reject here: Burton’s

sentence at all times has been for 188 months. If the March

26 memorandum is nothing but a wordier version of

what the court said at the sentencing hearing, then

neither the Government nor Burton loses anything by our

either considering it or disregarding it. If Burton had

raised an argument on appeal that depended on some

difference between the two versions of the court’s explanation, then we would have a more difficult case. At some

point, the record should be closed so that appellate

review can go forward. Once an appeal is proceeding,

courts of appeals should not have to check the docket

of the district court constantly to make sure that the

judge has not added yet another statement about its

sentencing decision. Indeed, at least one member of this

court has expressed the opinion that the practice of filing

a post-appeal opinion, while within the district court’s

power, is one that should be used sparingly. See Matter of

Jones, 768 F.2d 923, 930-31 (7th Cir. 1985) (Posner, J.,

concurring). In this case, we have no need to say more

about the district court’s March 26 memorandum, because

it did not come so late as to disrupt our proceedings, nor

did it alter even the reasoning behind the judgment

enough to cause concern. Burton has asked only for a

new sentencing hearing, and we see no reason why the

filing of the March 26 memorandum while this appeal

was pending gives him that right.
No. 07-1323 7

This conclusion largely answers Burton’s second point,

which is that the district court deprived him of his right

to be present at a crucial stage of the proceedings, namely,

when the written judgment issued. Burton was indisputably present at the oral sentencing, which is the moment

when the sentence attaches. See United States v. Napier,

463 F.3d 1040, 1042 (9th Cir. 2006). A criminal defendant

has no right to be present in the judge’s chambers

when she writes her sentencing memorandum or files

it with the clerk.

We conclude by noting again that Burton has not presented any argument to us claiming that his sentence

was either based on an erroneous calculation under the

Sentencing Guidelines or was unreasonable. He has not

argued that the court’s oral explanation was so wanting

that we must remand for that reason. Finally, if we were

to grant Burton the new sentencing hearing he has requested, we see nothing to suggest that the district court

would not repeat exactly what it has already said three

times. We therefore AFFIRM the judgment of the district

court.

9-11-08