United States of America v. William Eskridge

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2808
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
W ILLIAM E SKRIDGE ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 93-CR-15—C. N. Clevert, Judge.
____________
S UBMITTED D ECEMBER 13, 2005—D ECIDED A PRIL 19, 2006
____________
Before POSNER , W ILLIAMS , and S YKES , Circuit Judges.
P OSNER , Circuit Judge. William Eskridge was convicted
in 1992 of federal crimes and was sentenced to two con-
secutive prison terms to be followed by two concurrent 36-
month terms of supervised release. He violated the terms of
his supervised release in 2002, 2004, and 2005, and each time
was sent back to prison. He appeals from the imposition in
2005 of a 22-month prison term on the basis of his latest
violation. His lawyer moved to withdraw on the ground
that there is no nonfrivolous ground for challenging the
term. Anders v. California, 386 U.S. 738, 744 (1967).

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2 No. 05-2808
We think there is a nonfrivolous ground, and in the usual
case that would require us to deny the lawyer’s motion to
withdraw and order counsel to brief the merits before
we could decide the nonfrivolous issue, because to do
otherwise would violate the appellant’s constitutional right
to counsel. Smith v. Robbins, 528 U.S. 259, 277 (2000); Penson
v. Ohio, 488 U.S. 75, 83-84 (1988). But this presupposes that
the appellant has a constitutional right to counsel, and he
may not in a case in which he is complaining not about an
ordinary criminal judgment but about a revocation of
supervised release and concomitant order returning him
to prison. Anders was based not on the Sixth Amend-
ment’s right to counsel, which does not extend to appel-
late proceedings, Martinez v. Court of Appeal, 528 U.S. 152,
160 (2000), but on the idea, first announced in Douglas v.
California, 372 U.S. 353 (1963), that the equal protection of
the laws requires the government to provide the indigent
with counsel in the initial appeal from a criminal conviction
if the affluent are permitted to appeal with the assistance of
counsel. In the situation, analogous to that presented in this
case, of revoking probation, the Supreme Court has held
that the defendant has a constitutional right to counsel only
if the denial of counsel would violate due process of law,
which ordinarily will be true only if the defendant makes a
colorable claim “(i) that he has not committed the alleged
violation of the conditions upon which he is at liberty; or (ii)
that, even if the violation is a matter of public record or is
uncontested, there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate.”
Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973); see also United
States v. Yancey, 827 F.2d 83, 89 (7th Cir. 1987).
The Court did add that “the responsible agency also
should consider, especially in doubtful cases, whether the
probationer appears to be capable of speaking effectively for

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No. 05-2808 3
himself.” 411 U.S. at 790-91; see United States v. Stocks, 104
F.3d 308, 311 (9th Cir. 1997). But we interpret this to be a
reference to cases in which it is unclear whether the two
criteria that constitute the test quoted in the preceding
paragraph have been satisfied. If it is clear that they have
not been satisfied, it is unnecessary to ask whether the
probationer can represent himself effectively. For if that
were a free-standing test of due process, cases (cited below)
that deny a right of counsel in postconviction proceedings
would not make sense, for the issues presented in such
proceedings are often quite beyond the ability of the average
prisoner to address effectively.
We cannot think of any reason for using a different test for
when there is a right to counsel in proceedings to revoke
supervised release from Gagnon’s test of the right to counsel
in proceedings to revoke probation, given the similarity
between the two types of revocation, as we noted in United
States v. Dillard, 910 F.2d 461, 464 n. 2 (7th Cir. 1990) (per
curiam); see also United States v. Jones, 299 F.3d 103, 109 (2d
Cir. 2002). It is true that we assumed in United States v. Goad,
44 F.3d 580, 586, 589 (7th Cir. 1995), that there is a right to
counsel in supervised-release cases, but it was merely an
assumption. The Second Circuit assumed the contrary in
United States v. Pelensky, 129 F.3d 63, 68 n. 8 (2d Cir. 1997),
and the Ninth Circuit is on both sides of the issue. Compare
United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000),
which did not cite Gagnon, with United States v. Soto-Olivas,
44 F.3d 788, 792 (9th Cir. 1995), which did. We now hold
that the proper approach is the one that the Supreme
Court’s Gagnon opinion prescribed for revocation of proba-
tion.
Since Eskridge did not deny that he had violated the
conditions of his supervised release or suggest any grounds
in justification or mitigation, due process did not entitle him

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4 No. 05-2808
to counsel either in the district court, where in fact he had
counsel by virtue of 18 U.S.C. §§ 3006a(a)(1)(C), (E) (2004 &
Supp. I), and Fed. R. Crim. P. 32.1, or in this court. The
statute, it is true, entitled him to counsel in this court as
well, 18 U.S.C. § 3006A(c), and if his lawyer failed to brief a
nonfrivolous issue this might make his representation of
Eskridge “ineffective” and therefore inconsistent with the
requirement that the Supreme Court has read into the Sixth
Amendment that a criminal defendant’s counsel be effec-
tive. But that is of no moment as far as Anders is concerned,
since Eskridge has no Sixth Amendment right to counsel
(nor, unlike Douglas and Anders, a right founded on the
equal protection clause). Pennsylvania v. Finley, 481 U.S. 551
(1987), so held in the analogous case of postconviction
counsel; see also United States v. Kimberlin, 898 F.2d 1262,
1265 (7th Cir. 1990). So we are not precluded from address-
ing the merits of Eskridge’s appeal and affirming the district
court’s judgment if we determine that the appeal, though
not frivolous, is also not meritorious. Even more clearly, we
are free to reverse. So let us turn to the merits.
When Eskridge was first convicted, the supervised-release
statute provided that a defendant whose release was
revoked could not be reimprisoned for more than two years
if the offense of conviction was merely a Class C or Class D
felony; Eskridge had been convicted of one of each. 18
U.S.C. § 3583(e)(3) (1988 & Supp. IV). This ceiling applied,
moreover, to the aggregate of reimprisonments based on
multiple revocations. United States v. Beals, 87 F.3d 854, 857-
58 (7th Cir. 1996), overruled on other grounds by United
States v. Withers, 128 F.3d 1167 (7th Cir. 1997); United States
v. Merced, 263 F.3d 34, 37 (2d Cir. 2001) (per curiam); United
States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir. 1999)
(per curiam). Before his latest revocation, Eskridge had

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No. 05-2808 5
served 14 months in prison for his previous revocations, and
so, since two years equals 24 months, he could not
be sentenced to more than 10 months for the third revo-
cation. Or so it might seem. But there is a wrinkle. To
straighten it out will require a brief excursus into an esoteric
corner of federal criminal procedure.
Congress in 1994 ordained that upon revoking a term
of supervised release, the district court could impose a
prison term followed by more supervised release. 18 U.S.C.
§ 3583(h). Eskridge was originally sentenced in 1992,
however, and in Johnson v. United States, 529 U.S. 694 (2000),
the Supreme Court held that section 3583(h) could not be
applied retroactively. But the Court also held that upon
revocation of a term of supervised release imposed prior to
the enactment of that statute, the district court could impose
a term of reimprisonment and a further term of supervised
release, provided that the sum of the terms did not exceed
the original term of supervised release. When as in this case
supervised release is revoked and the defendant reimpris-
oned, he gets no credit for time previously served on
supervised release. 18 U.S.C. § 3583(e)(3) (1988 & Supp. IV);
United States v. Withers, supra, 128 F.3d at 1169 n. 3. So while
Eskridge was entitled to 14 months’ credit for the reimpris-
onment time that he served, he was entitled to no credit for
the portion of the 36 months of supervised release that he
had served before revocation. The same is true with respect
to the portions of the 26-month and 12-month terms of
supervised release that he served after the first and second
revocations, respectively, before they were also revoked.
And so the judge was entitled to impose those terms, even
though the sum of them plus the 14 months of reimprison-
ment exceeded the original term of supervised release (52 >
36).

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6 No. 05-2808
But here is the problem. When Eskridge’s supervised
release was first revoked in 2002, the district judge was
revoking concurrent terms of supervised release because
that is what he had imposed in his original sentencing. But
when he then sentenced Eskridge to 26 more months of
supervised release, he did not indicate in the judgment
order whether these were two (concurrent) terms or one
term. In 2004, he imposed concurrent terms of supervised
release but this was proper only if he was revoking two
terms rather than one. When 2005 arrived and the judge
again revoked supervised release, if he was revoking only
one term of supervised release he could reimprison
Eskridge for only 10 more months because Eskridge had
already served 14 months of reimprisonment. For remember
that the maximum reimprisonment, regardless of the
number of revocations of supervised release, is 24 months.
The reason it matters whether the 26 months of supervised
release represented one term or two concurrent terms is that
consecutive terms of imprisonment may be imposed upon
revocation of concurrent terms of supervised release. United
States v. Deutsch, 403 F.3d 915, 917 (7th Cir. 2005) (per
curiam). So if in 2002 the district judge actually imposed
two terms of supervised release, he had two terms that he
could revoke in 2004 and 2005 and he could then have
ordered Eskridge to serve consecutive 10-month prison
terms without violating the 2-year maximum. (Of course
two consecutive 10-month terms don’t add up to 22 months,
the sentence that the judge imposed, but only to 20 months.
We do not know what the judge was thinking; but as will
become apparent, this mystery need not be unraveled.)
In United States v. Gresham, 325 F.3d 1262, 1263 and n. 1
(11th Cir. 2003), the defendant had pleaded guilty to five
counts of bank robbery and had been sentenced to
87 months in prison followed by 60 months of supervised

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No. 05-2808 7
release. The court of appeals interpreted the sentence of
supervised release as having been imposed on each count,
to run concurrently. It wouldn’t have made any sense
for the judge to have imposed supervised release on only
one count. That is equally true in this case, especially
when the judge had imposed concurrent terms of super-
vised release on each of the two counts of conviction, both
in his original sentencing and in his second revocation of
supervised release. (The third time he merely ordered
Eskridge reimprisoned; he did not impose a further term of
supervised release.)
If the failure of the judgment order to state that the
judge was imposing two (concurrent) terms of supervised
release in the first revocation was merely a clerical error—
that is, if the court announced two new terms but the
clerk who typed the 2002 judgment included just one— then
Rule 36 will allow correction even now. United States v.
Smith, 438 F.3d 796, 799-800 (7th Cir. 2006). But if the order
accurately reflects the judge’s decision, however mistaken,
to impose just a single term, it cannot be corrected because
none of the statutory provisions authorizing the sentencing
judge to modify a sentence that he has imposed is applicable
to this case. Absent those, a district judge may still correct
a final judgment in a criminal case to reflect the sentence he
actually imposed but he cannot change the sentence he did
impose even if the sentence was erroneous. Id.; United States
v. Daddino, 5 F.3d 262, 264-65 (7th Cir. 1993) (per curiam);
United States v. Layman, 116 F.3d 105, 108-09 (4th Cir. 1997);
United States v. Werber, 51 F.3d 342, 346-49 (2d Cir. 1995).
To resolve the issue of clerical error versus judicial error,
we sent for the transcript of the sentencing hearing. United
States v. Becker, 36 F.3d 708, 710 n. 2 (7th Cir. 1994). There we
discover that in imposing supervised release in the
first revocation the judge stated: “Because of the short

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8 No. 05-2808
term imposed in this matter the court is going to also
continue you on supervised release for a term of 26
months.” A term. This was the sentence and it was accu-
rately reflected in the written judgment, which means that
the judge could not impose consecutive 10-month terms
of imprisonment when Eskridge again violated the terms of
his supervised release. The judgment must therefore
be vacated and the case remanded for resentencing.
We deny the motion of Eskridge’s lawyer to withdraw
as counsel, since Eskridge has a statutory right to counsel in
subsequent proceedings in this case both in the district court
and if necessary in this court.
V ACATED AND R EMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-19-06

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