NONPRECE DENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1


# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604
Submitted October 2, 2008 *

Decided October 9, 2008



### Before

F RANK H. E ASTERBROOK , Chief Judge

A NN C LAIRE W ILLIAMS , Circuit Judge

D IANE S. S YKES , Circuit Judge

No. 07

- 2761

U NITED S TATES OF A MERICA , Plaintiff

- Appellee

,

v

. A NSELMO Z EPEDA , Defendant

- Appellant

. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.

No. 2:05 CR 41

- 04 Rudy Lozano, Judge

.

Order
An selmo Zepeda pleaded guilty to a cocaine offense, 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to 210 months’ imprisonment, the bottom of the range under the Se ntencing Guidelines. (The judge found that Zepeda has an offense level of 37 and a crim inal hi story category of I, producing a range of 210 to 262 months.) Zepeda’s lawyer has filed an Anders brief and moved to wit h draw, representing that he cannot identify a

non

- frivolous issue. See Anders v. Cal i fornia , 386 U.S. 738 (1967). We invited Zepeda to f ile a response, see Circuit Rule 51(b), but he has not done so. Counsel’s submission covers several potential issues, and we agree with his conclusion that each of these issues would be frivolous. But counsel supposes that Zepeda has been sentenced to 150 months; the written judgment gives the term as 210. Counsel does not appear to recognize that it will take some legal work to achieve a se n tence of 150 months for his client. Counsel’s belief comes from the transcript of sentencing. When oral and written

s entences conflict, the oral sentence controls because it was pronounced in the accused’s pre s ence

— and the accused has a right to be present for sentencing. See United States v.

* After examining the briefs and the record, we have concluded that oral argument is unnece s sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).No. 07

- 2761 Page 2

McHugh , 528 F.3d 538, 539 (7th Cir. 2008). The figure “150” in the transcript i s not nece ssarily conclusive, however. Perhaps the court reporter misunderstood what the judge said. Or perhaps the judge has used his authority to correct an error under Fed. R. Crim. P. 35(a), a step that can be taken within seven days of sentencing. Eit her way, an oral misstep is not conclusive, see United States v. Bonanno , 146 F.3d 502, 511 (7th Cir. 1998)

— though correction may require the defendant’s return to the cour t room. The oral pronouncement is internally contradictory. The 150

- month figure does not stand alone. The judge also told Zepeda that the Guideline range is 210 to 262 months, and that “[t]he court is imposing a sentence at the bottom end of the Guidelines”. This implies that the written judgment accurately reflects the sentence. This cou rt has never held that an oral slip of the tongue will undo a lawfully calculated sentence. See United States v. Agostino , 132 F.3d 1183, 1200 (7th Cir. 1997) (leaving open the appropr i ate treatment of oral pronouncements that appear to be mistaken). Perha ps, ho w ever, the district judge really wants Zepeda to serve 150 months and the written judgment is in error. If this appeal is dismissed u n der Anders , the sentence will remain at 210 months, for the Bureau of Prisons implements the writing rather than wor king through tra nscripts. D e partment of Justice, Legal Resource Guide to the Federal Bureau of Prisons 10, 12 (2008). There is therefore legal work still to be done on Zepeda’s behalf. The motion to withdraw is denied. The opening brief is due 30 days from today, and the remaining briefs as provided in Fed. R. App. P. 31(a)(1).