Eric L. Wilkins-El v. Helen J. Marberry

After examining the briefs and record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2009*
Decided July 16, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-4147
ERIC L. WILKINS-EL,
Petitioner-Appellant,
v.
HELEN J. MARBERRY,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre
Haute Division.
No. 2:08-cv-00095-WTL-WGH
William T. Lawrence,
Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08-4147 Page 2
The record refers to the appellant as “Wilkins” or “Wilkins-El” in various places.1
He uses “Wilkins-El” on his brief, and we will call him by the name he calls himself.
O R D E R
Eric Wilkins-El claims in this action under 28 U.S.C. § 2241 that the Bureau of1
Prisons is improperly executing his sentence. He argues that he was sentenced under the
law that governed before the effective date of the Sentencing Reform Act of 1984, Pub. L.
No. 98-473, Title II, 98 Stat. 1987, and thus would eventually be eligible for parole except
that the BOP has misinterpreted the judgment of conviction as one under the Sentencing
Reform Act. The district court rejected this contention, but we conclude that Wilkins-El is
correct about the law governing his sentence. Accordingly, we vacate the district court’s
decision and remand with directions to grant the relief requested by Wilkins-El.
This is an old conviction without practical significance until now. Wilkins-El was
part of a group that trafficked crack and marijuana in the Eastern District of Michigan
beginning in 1983. In 1987 he was convicted on conspiracy and distribution charges in that
district. See United States v. Wilkins, 995 F.2d 1068 (6th Cir. 1993) (unpublished opinion). At
sentencing the district court discussed whether Wilkins-El was to be sentenced under the
Sentencing Reform Act of 1984, which became effective on November 1, 1987, but only for
crimes committed after that date, or whether his case should be governed by old law.
Wilkins-El preferred the old law because the Sentencing Reform Act eliminated parole, and
the prosecutor voiced agreement that the old law applied to Wilkins-El because he stopped
participating in the conspiracy as of his arrest, before the effective date of the new statute.
The district court accepted the parties’ shared view about the governing law but
announced that, either way, it would use the sentencing guidelines to fashion an
appropriate sentence. The court then imposed 405 months’ imprisonment and three years’
supervised release, to be served consecutively to an unexpired 13- to 20-year state sentence
that Wilkins-El was already serving. Before the hearing adjourned, defense counsel asked
the district court to ensure “that the order of judgment specifically reflect Mr. Wilkins is
being sentenced under the pre-November 1, 1987 statute.” The court responded, “Yes, the
judgment will be that it is pre-1987.”
The written judgment, however, is a standard form stating that the sentence was
“imposed pursuant to the Sentencing Reform Act of 1984.” The Bureau of Prisons
ordinarily implements written judgments, not oral pronouncements, see U.S. Dep't of
Justice, Legal Resource Guide to the Federal Bureau of Prisons 10, 12 (2008), and so when
Wilkins-El completed his state sentence and was transferred to BOP custody in 2004,
administrators applied the Sentencing Reform Act in calculating his presumptive release

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No. 08-4147 Page 3
date. As a result, the BOP lists Wilkins-El, who is currently forty years old, as ineligible for
parole and projects that he will be released in 2033. Under prior law he would be eligible
for parole in 2017 after completing one third of his prison sentence. See 18 U.S.C. § 4205(a);
United States v. Prevatte, 66 F.3d 840, 846 (7th Cir. 1995); United States v. Ruffin, 997 F.2d 343,
347 (7th Cir. 1993).
Wilkins-El apparently noticed the erroneous written judgment before he reached
BOP custody, because in 2001 he filed a motion in the Eastern District of Michigan seeking
to correct, under Federal Rule of Criminal Procedure 35(a), a purportedly illegal sentence.
The district court, overlooking the government’s concession as well as the sentencing
judge’s statements, rejected the motion as untimely in 2004. The court reasoned that
Wilkins-El was convicted of participating in a conspiracy which extended beyond
November 1, 1987, and thus was subject to the “new” version of Rule 35(a), which places a
seven-day limit on correcting an erroneous sentence. This ruling was made by a different
judge than the one who sentenced Wilkins-El, and the court’s order does not make
reference to the sentencing transcript. Wilkins-El did not appeal the decision.
Instead, he completed the BOP’s administrative procedures for challenging the
execution of his sentence. To its credit, the BOP attempted to contact the sentencing court
for clarification of the sentence. But the court did not respond, and the BOP determined
that Wilkins-El was subject to post-1987 law. And after exhausting those internal remedies,
he filed this § 2241 action in his district of confinement, the Southern District of Indiana. In
response to his claim that the BOP has erroneously applied the Sentencing Reform Act to
his old-law sentence, government lawyers in the Southern District of Indiana now argued
that Wilkins-El was convicted of participating in a conspiracy that functioned past
November 1, 1987, and thus his sentence must have been under the new law. The
government insisted that the sentencing court’s oral pronouncement is “ambiguous,” and
that the § 2241 petition should therefore be resolved by giving effect to the unambiguous
written judgment. In support of its contention that the sentencing transcript is ambiguous,
the government represented that the sentencing court in Michigan had said inconsistently
at different points both that it was applying the old law and that it was applying the
Sentencing Reform Act. The district court accepted the government’s position and
dismissed the § 2241 petition with prejudice.
On appeal, the government continues to argue that the sentencing court’s oral
pronouncement is ambiguous and that Wilkins-El was given a new-law sentence. Before
we can address that contention, it is necessary to establish that the issue is ripe. Wilkins-El
does not contend that his custody at the moment is illegal, but that it will become illegal
once he would have been eligible for parole. However, he may still bring this petition now.

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A prisoner may challenge the illegality of future confinement, even if he is currently legally
confined. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89 (1973);
Vargas v. Swan, 854 F.2d 1028, 1030-31 (7th Cir. 1988).
We turn then to the government’s assertion that the sentencing court’s oral
pronouncement is ambiguous. This contention is both incorrect and misleading. The
sentencing transcript is clear that the Michigan district judge looked to the sentencing
guidelines in fashioning an appropriate prison term, but in defending this § 2241 action the
government has ignored the court’s explanation that it would take advantage of the
guidelines calculation whether or not the resulting sentence was imposed under the
Sentencing Reform Act. See United States v. Bullock, 857 F.2d 367, 372 (7th Cir. 1988)
(approving of sentencing court’s use of preliminary draft of sentencing guidelines to assist
in selecting appropriate sentence for pre-guidelines offense); United States v. Vega, 860 F.2d
779, 800-01 (7th Cir. 1988) (upholding sentencing court’s consideration of newly
promulgated sentencing guidelines when selecting appropriate sentence for pre-guidelines
offense). The government’s lawyers also ignore that their counterpart in the Eastern
District of Michigan told the sentencing court that there was no basis for objecting to an
old-law sentence because Wilkins-El was already in custody by November 1, 1987. Counsel
for Wilkins-El, perhaps wanting to leave nothing to chance, made a point of asking the
sentencing court to state, on the record, that it was entering judgment under pre-1987
sentencing law. And the court did so without comment from the prosecutor. The
government now marshals the sentencing court’s statements out of context to raise
objections it waived two decades ago.
The government also argues, without citation, that the imposition of a term of
supervised release evidences that Wilkins-El was sentenced under the new law. This
contention is also incorrect. Unlike other federal defendants who did not face the prospect
of supervised release before the Sentencing Reform Act took effect, drug offenders became
subject to supervised release with passage of the Anti-Drug Abuse Act of 1986, Pub.L.
No. 99-570, 100 Stat. 3207-2 to 3207-6. See Gozlon-Peretz v. United States, 498 U.S. 395, 407-08
(1991); United States v. Delamora, 451 F.3d 977, 978-79 (9th Cir. 2006). Thus the sentencing
court was required to impose a term of supervised release under either body of sentencing
law.
We think it is clear that Wilkins-El was sentenced under a scheme that allows for
parole. We have both the judgment of conviction and the sentencing transcript before us,
and from those documents there is no question about the intent of the sentencing court.
The sentencing court entered its judgment on the standard form that has been used since
the Sentencing Reform Act took effect, but that clerical mistake cannot change the fact that

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the court unambiguously pronounced sentence under pre-1987 law. We recognize that the
United States District Court for the Eastern District of Michigan recently denied a motion
that Wilkins-El filed under Federal Rule of Criminal Procedure 36 to correct the written
judgment in his original case. See United States v. Wilkins, No. 87-CR-80933-13 (E.D. Mich.
July 10, 2009). That court’s order, like the government’s brief in this case, fails to
acknowledge or give effect to the sentencing court’s statement that “the judgment will be
that it is pre-1987.” The government and the Michigan district court both characterize the
sentencing transcript as ambiguous, but by eliciting that clarification at the conclusion of
the sentencing hearing, Wilkins-El’s attorney removed any ambiguity that might have
existed up to that point. And an unambiguous oral pronouncement of sentence
unquestionably controls over an inconsistent written judgment. See United States v.
McHugh, 528 F.3d 538, 539 (7th Cir. 2008); United States v. Alburay, 415 F.3d 782, 788 (7th Cir.
2005). That is the rule in the Sixth Circuit as well. See United States v. Cofield, 233 F.3d 405,
406-07 (6th Cir. 2000); United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988).
Accordingly, we conclude that Wilkins-El was sentenced under the law governing before
the effective date of the Sentencing Reform Act, and no matter what form was used to
memorialize this parole-eligible sentence, the BOP must read it as intended and
pronounced by the sentencing court. The judgment of the district court is VACATED and
the case is REMANDED with directions to grant the § 2241 petition and order the BOP to
execute Wilkins-El’s sentence under the law in effect before November 1, 1987.

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