In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-3594

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS M. MCHUGH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-100-S—John C. Shabaz, Judge.

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ARGUED MAY 6, 2008—DECIDED JUNE 12, 2008

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Before EASTERBROOK, Chief Judge, and WOOD and TINDER,

Circuit Judges.

EASTERBROOK, Chief Judge. Thomas McHugh pleaded

guilty to structuring financial transactions to evade

currency-reporting requirements, see 31 U.S.C. §5324(a)(3),

and has been sentenced to 41 months’ imprisonment. In

open court, the district judge said that he would recommend to the Bureau of Prisons that McHugh “be afforded

the opportunity to participate in substance abuse education and treatment programs”. The judgment includes

this statement: “The Court recommends the defendant

be afforded the opportunity to apply for substance abuse
2 No. 07-3594

education and treatment programs while confined which

do not include an early release.” McHugh’s only argument on appeal is that the language “which do not include an early release” is inconsistent with the oral

statement. A sentence pronounced in a defendant’s

presence prevails over a written sentence when the two

conflict. See, e.g., United States v. Makres, 851 F.2d 1016 (7th

Cir. 1988).

Whether the judge’s oral and written sentences conflict

is an interesting question—an elaboration differs from a

contradiction—but not one we need answer. Indeed, this

appeal does not present any question within “the judicial Power” under Article III of the Constitution, because

a recommendation differs from a judgment. Before we

proceed, however, we must clear up a problem introduced by the district court’s recent effort to resolve the

issue.

After both sides’ briefs had been filed, and less than a

month before the date set for oral argument, McHugh

(acting pro se) filed in the district court a motion asking

that the phrase “which do not include an early release”

be deleted. Judge Shabaz, who sentenced McHugh, is

on medical leave; Chief Judge Crabb granted the motion

in his absence.

The district court lacked authority to make this change.

First, in criminal cases district courts may correct errors

only within seven days of sentencing. Fed. R. Crim. P.

35(a). Chief Judge Crabb invoked Fed. R. Crim. P. 36,

which provides that “clerical” errors may be corrected “at

any time”, but the record does not show that this error

was “clerical”. Rule 36 cannot be used to enlarge the

time provided by Rule 35(a) for fixing judicial gaffes. See
No. 07-3594 3

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).

Because nothing in the record implies that the contested

language was added to the judgment without Judge

Shabaz’s knowledge or approval, Rule 36 does not apply. (It is possible in principle for a judge to make

a “clerical” mistake by transcribing his own decision

incorrectly, but the record does not suggest that this has

occurred.)

Second, a district court may not interfere with this

court’s jurisdiction by amending a decision that is under

appellate review. “The filing of a notice of appeal is an

event of jurisdictional significance—it confers jurisdiction

on the court of appeals and divests the district court of its

control over those aspects of the case involved in the

appeal.” Griggs v. Provident Consumer Discount Co., 459

U.S. 56, 58 (1982). A district court may patch up clerical

errors affecting one aspect of a case while another aspect

is on appeal. See United States v. McGee, 981 F.2d 271 (7th

Cir. 1992). But neither McGee nor any other opinion that

we have been able to find allows a district court to use

Rule 36 to change the precise feature of a disposition

that is under appellate review. Only one court at a time

has jurisdiction over a subject. Chief Judge Crabb apparently did not recognize this problem, because McHugh’s

motion did not mention that the same issue was pending

on appeal and the district court granted the motion

before the prosecutor could file a response.

Third, neither Chief Judge Crabb northis court is entitled

to change Judge Shabaz’s recommendation to the Bureau

of Prisons. A recommendation differs from a judgment,

and under Article III that difference is fundamental.
4 No. 07-3594

The First Congress enacted a statute directing federal

judges to review veterans’ and survivors’ claims and make

recommendations to the Secretary of War about whether

these claims should be paid. Chief Justice Jay and Justice

Cushing concluded that this law was unconstitutional,

because the “judicial Power of the United States” is a

power to make binding decisions, not to make suggestions

that the Executive Branch may accept or reject. See

Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The Justices

volunteered to make recommendations outside their

judicial capacities, but no one supposed then (or later) that

these recommendations could be reviewed by another

court. If making a recommendation is not the exercise of

the judicial power, then affirming or reversing such a

recommendation on appeal also is not an occasion for

the use of a “judicial” power.

Hayburn’s Case did not speak for the Supreme Court (the

statute was amended before the full Court could act),

but the decision of the Justices on circuit has long been

understood as a foundation of Article III jurisprudence.

See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218

(1995); Chicago & Southern Air Lines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103 (1948); United States v. Ferreira,

54 U.S. 40 (1852). It means that, although a judge may

tender a recommendation to the Executive Branch, the

recommendation cannot be treated as if it were a judgment and reviewed or revised by some other judge.

Judge Shabaz had a case or controversy—he had to

decide whether McHugh had committed a crime and, if

so, what punishment to mete out—but Chief Judge Crabb

did not, and neither do we. It is no more permissible to

amend Judge Shabaz’s recommendation to the Bureau of

Prisons than it would be to amend his statement of rea-
No. 07-3594 5

sons for the sentence, just to yield a view more to another

judge’s liking, while leaving the sentence untouched. That

would be an advisory opinion. See Powerex Corp. v. Reliant

Energy Services, Inc., 127 S. Ct. 2411, 2419 (2007); LeguizamoMedina v. Gonzales, 493 F.3d 772 (7th Cir. 2007).

Judge Shabaz gave the Bureau of Prisons a suggestion, which the Bureau is free to accept or reject. In doing

so he did not exercise the judicial power, and McHugh’s

request that we redact the suggestion likewise does not

appeal to the judicial power. McHugh’s lawyer is free to

communicate with the Bureau of Prisons on this subject,

but no Article III court may issue an advisory opinion

changing a suggestion that does not affect the sentence.

McHugh contends that United States v. Gonzales, 765

F.2d 1393 (9th Cir. 1985), reviewed a district judge’s

suggestion to the Bureau of Prisons, but we do not read

Gonzales so. Gonzales contended that a recommendation

to the Bureau that he be placed in a sex-offender treatment program revealed that the district judge had taken

into account certain contested information in the presentence report, and had increased his term of imprisonment on the basis of this information, even though by

a statement under Fed. R. Crim. P. 32(c)(3)(D) the judge

had disclaimed any reliance on that information. (The

subsection in question is today Rule 32(i)(3)(B).) The

court of appeals took the district judge at his word and

affirmed. The question before the court of appeals in

Gonzales—whether the defendant’s sentence was too

long—was within the judicial power under Article III. That

a dispute about the validity of a judgment may be entangled with a recommendation does not imply that a

recommendation standing alone may be reviewed or

“corrected” by a court of appeals.
6 No. 07-3594

The decision of Chief Judge Crabb dated April 23, 2008,

is vacated. The appeal otherwise is dismissed for want of

a justiciable controversy.

USCA-02-C-0072—6-12-08