16 F.4th 487
7th Cir.2021Background
- In 2012 McClain pleaded guilty to federal distribution of cocaine and a supervised-release violation; he also had a 20-year state sentence. The district court originally ordered a complex mix of concurrent and consecutive federal time across the two federal cases.
- After Dorsey, the court vacated and resentenced in 2013: orally it pronounced 90 months total (72 months distribution, 18 months revocation), with 24 months concurrent to the state sentence (leaving 66 months federal time after state). The written judgments did not match that oral pronouncement, producing more concurrent time and less federal time.
- Amendment 782 led to a 2016 §3582(c)(2) reduction in the distribution sentence to 70 months, which created conflicts and arithmetic errors between the two written federal judgments.
- In February 2021 the parties jointly proposed and the court entered an amended distribution judgment reflecting 70 months and corrected arithmetic; the delivery judgment remained as written in 2013.
- In March–May 2021 the government moved under Federal Rule of Criminal Procedure 36 to "correct" clerical errors; the district court amended both judgments (May 2021) to add back 18 months and reincarcerate McClain. McClain objected, arguing Rule 36 could not be used to make substantive changes outside Rule 35’s 14‑day window.
- The Seventh Circuit held the district court erred: it vacated the May 2021 amended judgments and ordered reinstatement of the February 2021 distribution judgment and the 2013 delivery revocation judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could use Rule 36 to modify the distribution sentence instead of Rule 35 | McClain: changes were substantive (not clerical); only Rule 35 could alter sentence, and its 14‑day window expired | Government: written judgments conflicted with 2013 oral pronouncement; Rule 36 allows correction at any time | Court: May 2021 modification of distribution sentence was not a clerical correction; Rule 36 inappropriate; vacated amended judgment and reinstated Feb 2021 distribution sentence |
| Whether the delivery (revocation) sentence could be corrected under Rule 36 to add 18 months | McClain: written 2013 delivery judgment was consistent with the oral pronouncement when read with distribution sentence; any change would be substantive | Government: delivery judgment, unlike distribution, hadn’t been modified and conflicted with 2013 oral sentence, so Rule 36 could fix it | Court: correction would have relied on altering other later changes to the distribution sentence and was substantive; Rule 36 not available; vacated amended delivery judgment and reinstated 2013 revocation sentence |
Key Cases Cited
- Dorsey v. United States, 567 U.S. 260 (2012) (triggered resentencing in light of new guidelines interpretation)
- United States v. Melvin, 948 F.3d 848 (7th Cir. 2020) (de novo review of legal questions and rule interpretation)
- United States v. Medina-Mora, 796 F.3d 698 (7th Cir. 2015) (Rule 36 may correct inconsistency between oral pronouncement and written judgment)
- United States v. Alburay, 415 F.3d 782 (7th Cir. 2005) (oral pronouncement controls where written judgment conflicts)
- United States v. Eskridge, 445 F.3d 930 (7th Cir. 2006) (an accurate written order reflecting the judge’s decision cannot be corrected merely because it was erroneous)
- Romandine v. United States, 206 F.3d 731 (7th Cir. 2000) (reinstating a prior sentence where unlawful resentencing was untimely challenged)
- United States v. Daddino, 5 F.3d 262 (7th Cir. 1993) (Rule 36 not intended to fix substantive errors made by the court)