United States of America v. Jose Miguel Medina -Mora

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-1243 & 14-1420
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OSE MIGUEL MEDINA -MORA ,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 1021 — Ronald A. Guzmán, Judge.
____________________
A RGUED AUGUST 4, 2015 — D ECIDED A UGUST 5, 2015
___________________
Before P OSNER , KANNE , and HAMILTON, Circuit Judges.
HAMILTON , Circuit Judge. When the district court sen-
tenced defendant Jose Miguel Medina-Mora in 2009 for un-
lawful reentry by an alien, see 8 U.S.C. § 1326(a) & (b)(2), he
was serving undischarged terms in an Illinois state prison on
a drug charge and a weapons charge. When the district court
pronounced sentence orally in open court, the judge said
that Medina-Mora was “committed to the custody of the Bu-

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2 Nos. 14-1243 & 14-1420
reau of Prisons to be imprisoned for a concurrent term of 77
months on Count One.” When the court issued its written
judgment, however, the court said nothing about a “concur-
rent” sentence. The Bureau of Prisons has used the written
judgment to measure Medina-Mora’s imprisonment. Based
on the silence in the written judgment, the Bureau has treat-
ed his 77-month federal sentence as consecutive to the two
state sentences, so he did not begin earning credit toward his
federal sentence until he finished his state sentences.
When Medina-Mora learned about the difference be-
tween what the judge said and what the judge wrote, he
filed a motion in the district court under Federal Rule of
Criminal Procedure 36 to correct a clerical error in the writ-
ten judgment. The district judge denied the motion, conclud-
ing that his “use of the word ‘concurrent’ when imposing the
sentence was in error” and that he “did not intend for the
defendant’s sentence in the instant case to run concurrent
with the sentences on the state convictions he was then serv-
ing.”
Medina-Mora has appealed, and we must reverse. When
a court pronounces sentence orally, that is the defendant’s
sentence, at least if the oral pronouncement is unambiguous.
E.g., United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005);
United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998);
United States v. Becker, 36 F.3d 708, 711 (7th Cir. 1994); accord,
e.g., United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010); United
States v. Villano, 816 F.2d 1448, 1450–51 (10th Cir. 1987) (en
banc). In such a case, a conflicting written judgment is “a
nullity, not requiring further discussion.” Alburay, 415 F.3d at
788; see also United States v. Johnson, 765 F.3d 702, 710–711

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Nos. 14-1243 & 14-1420 3
(7th Cir. 2014); United States v. Weathers, 631 F.3d 560, 561
(D.C. Cir. 2011).
It is true that if the oral pronouncement is ambiguous,
the court may consider the entire record, including the writ-
ten judgment, to resolve the ambiguity. E.g., United States v.
Cephus, 684 F.3d 703, 709–10 (7th Cir. 2012); United States v.
Khoury, 901 F.2d 975, 977–78 (7th Cir. 1990). We see no ambi-
guity in this oral pronouncement, however. Medina-Mora
was convicted on only one federal charge. The only sentenc-
es with which the federal sentence could be “concurrent”
were the state sentences.
Because the written judgment failed to capture accurately
the unambiguous oral pronouncement, Rule 36 allows for
correction of such a clerical error at any time. Medina-Mora
is entitled to that correction.
In considering defendant’s motion to correct the clerical
error in the written judgment, the district court erred by
considering its original intentions and concluding that its
use of the word “concurrent” was an “error.” Under Federal
Rule of Criminal Procedure 35(a), the district court lost any
power it may have had to correct an “arithmetical, technical,
or other clear error” in the sentence fourteen days after pro-
nouncing sentence. At least after that time, the judge’s sub-
jective intentions no longer mattered and could not justify
the refusal to correct the clerical error. See Becker, 36 F.3d 708,
711 (7th Cir. 1994); United States v. Werber, 51 F.3d 342, 347
(2d Cir. 1995); Villano, 816 F.2d at 1451.
The denial of Medina-Mora’s Rule 36 motion is hereby
REVERSED. With the correction of the clerical error, Medi-
na-Mora may be entitled to release from Bureau of Prisons

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4 Nos. 14-1243 & 14-1420
custody either immediately or in the very near future
(though he is subject to a detainer from immigration authori-
ties). To avoid further delay, we therefore ourselves direct
the clerk of the district court to correct the clerical error. See
United States v. Pulley, 601 F.3d 660, 668 n.4 (7th Cir. 2010).
The clerk shall amend the judgment in this case to reflect
that Medina-Mora’s federal sentence was to run concurrently
with the undischarged state sentences he was subject to at
the time of his federal sentencing. The mandate shall issue
immediately and the clerk of the district court shall immedi-
ately notify the Bureau of Prisons of the correction so that
Medina-Mora’s correct release date may be determined as
soon as possible.
So ordered.

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