United States v. Jacques, 6 F.4th 337

Gary Jacques was convicted in 2011 on multiple cocaine-related counts; the jury found him guilty on Counts 1 and 2 for at least 500 grams but less than 5 kilograms, and on Count 5 for possession (not conspiracy).
The original judgment and a 2016 amended judgment mistakenly described Counts 1–2 as involving more than 5 kilograms and mischaracterized Count 5 as a conspiracy; Jacques sought correction under Fed. R. Crim. P. 36.
The district court denied Jacques's December 2019 Rule 36 motion on May 27, 2020 (First Rule 36 Order); Jacques timely appealed (No. 20-1762).
After the government conceded the judgment contained clerical errors in its opposition to Jacques's First Step Act motion, the district court issued a Second Rule 36 Order on September 9, 2020 correcting the judgment while the First Rule 36 appeal remained pending.
The government moved to dismiss Jacques's appeal as moot; the Second Circuit held the district court lacked authority to enter the Second Order while the First Rule 36 appeal was pending, vacated both Rule 36 orders, remanded to restore the district court’s authority to amend the operative judgment, and ordered the compassionate-release appeal (No. 20-3276) unconsolidated and recalendarized.

Issue	Plaintiff's Argument (Jacques)	Defendant's Argument (United States)	Held
Whether the district court may correct clerical errors under Rule 36 while an appeal from denial of a Rule 36 motion is pending	Rule 36 permits correction "at any time" and errors are clerical; court may correct despite pendency	The district court can correct clerical errors and the Second Order moots the appeal	The district court lacked authority to enter the Second Order while the appeal of the denial was pending; appeal not moot; vacatur and remand to restore district court authority
Whether the appeal from the first denial is moot once the district court later corrects the judgment	Not moot because a post-appeal correction entered during pendency is ineffective to divest appellate jurisdiction	Moot because the Second Order granted the relief sought, so the appeal should be dismissed	Court denied the motion to dismiss; appeal not mooted by the intervening correction entered during pendency
Whether the errors at issue are clerical and therefore correctable under Rule 36	Errors plainly clerical (copying indictment rather than verdict; mislabeling Count 5) and should be corrected	Government ultimately conceded errors were clerical in its brief	Court found the errors clerical and correctable, but held the timing of the district court's correction while appeal was pending was improper

Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (rule that notice of appeal divests district court of control over aspects of case involved in the appeal)
United States v. Ransom, 866 F.2d 574 (2d Cir. 1989) (district court cannot make substantive modifications while appeal pending; remand to restore district court authority to revise judgment)
United States v. Katsougrakis, 715 F.2d 769 (2d Cir. 1983) (district court may correct clerical errors under Rule 36 or act to aid the appeal, but cannot engage in post-appeal factfinding to amend judgment)
United States v. Werber, 51 F.3d 342 (2d Cir. 1995) (definition of "clerical" errors as minor, uncontroversial recitation errors)
United States v. Burd, 86 F.3d 285 (2d Cir. 1996) (limits on using Rule 36 when correction would require substantive sentencing reconfiguration)