United States of America v. Luis A. Perez

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3947 & 08-2481
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS A. PEREZ,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 387—Virginia M. Kendall, Judge.
No. 87 CR 354—Ruben Castillo, Judge.
ARGUED APRIL 1, 2009—DECIDED APRIL 28, 2009
Before POSNER, EVANS, and TINDER, Circuit Judges.
EVANS, Circuit Judge. Luis Perez is no stranger to the
criminal justice system. Originally convicted and sentenced
on federal drug charges following a 1987 jury trial in the
Northern District of Illinois, see United States v. Perez, 870
F.2d 1222, 1225 (7th Cir. 1989), Perez extended his time in
custody through a 1993 prison assault, see United States v.
Perez, 79 F.3d 79, 80 (7th Cir. 1996); United States v. Perez, 43

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2 Nos. 07-3947 & 08-2481
F.3d 1131, 1132 (7th Cir. 1994), and, most recently, a
violation of the conditions governing his supervised
release. Perez now asks us to modify this most recent
sentence—actually, sentences, as we shall explain—due to
various procedural irregularities.
The complications arise from the fact that not one but two
district judges were responsible for ensuring Perez’s good
behavior while on supervised release. Judge Ruben Castillo
managed the docket from Perez’s original conviction in
1987 (N.D. Ill. Case No. 87-CR-354), but a new file was
opened when Perez was charged with attacking his
cellmate (W.D. Wis. Case No. 93-CR-8). Because the attack
occurred at the Federal Correctional Institution at Oxford,
Wisconsin, it was prosecuted in the Western District of that
state. When Perez was finally released from prison in 2006,
however, he returned to the Chicago area, and the Wiscon-
sin case was transferred to the Northern District of Illinois.
It was assigned a new docket number (N.D. Ill. Case No.
07-CR-387) and placed in the hands of Judge Virginia
Kendall. So by the time 2007 rolled around, we had two
judges monitoring Perez—too much of a good thing, as it
turns out.
It wasn’t long before Perez found his way back into
trouble. He failed to attend psychotherapy appointments
in 2006; failed several mandatory drug tests in that and the
following year; was arrested by Chicago police officers in
February 2007 for threatening his wife; and finally was
arrested on two later occasions (May 13, 2007, and June 28,
2007) for violating a protective order designed to ensure
his family’s safety. When the probation department

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Nos. 07-3947 & 08-2481 3
reported these events to Judges Castillo and Kendall in the
summer of 2007, both judges scheduled revocation hear-
ings. There was nothing technically improper about
that—the supervised release orders pertained to two
separate cases—but, pragmatically, things would get
tricky. Consolidating the cases would probably have been
a better way to proceed but that, alas, didn’t happen.
Judge Kendall ruled first. On August 6, 2007, following
an evidentiary hearing, she revoked Perez’s release on
supervision and sentenced him to 14 months imprisonment
to be followed by a fresh, 22-month term of supervised
release. That ruling, however, was short-lived. At Perez’s
request, Judge Kendall reconsidered her decision and held
a new hearing. It didn’t work out too well for Perez. After
receiving new evidence of a veiled threat against a proba-
tion officer, Judge Kendall decided Perez deserved more
time behind bars: 24 months instead of 14 (followed by
12 months of supervised release). Perez immediately
appealed the new sentence arguing, ironically enough, that
the court lacked jurisdiction to change the sentence. More
on this later.
In the meantime, Judge Castillo held a series of hearings
to determine the consequences for Perez in the other
criminal case. The same basic evidence was presented, and
Judge Castillo came to a similar conclusion in an oral
ruling handed down on May 9, 2008: Perez needed more
time in prison. But at this point things get fuzzy. Judge
Castillo was aware that Perez had appealed Judge Kend-
all’s modified sentence and, according to Perez, the length
of Judge Castillo’s sentence hinged on the outcome of that

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4 Nos. 07-3947 & 08-2481
That translates into 31 months—the figure noted in the 1
judgment—when counting credit for time served in connection
with Judge Kendall’s case.
appeal. In Perez’s view, premised on the original oral
ruling, Judge Castillo intended to sentence him to 12
months imprisonment, to be served consecutively to Judge
Kendall’s sentence regardless of whether the latter sentence
was upheld or vacated on appeal. Under this view, Perez
would spend less total time in prison if Judge Kendall’s
original sentence were reinstated; more if the sentence, as
modified, held up. The government, on the other hand,
relying on later statements by Judge Castillo and the final
written judgment issued on June 25, 2008, contends that
Judge Castillo wanted his sentence to be completely
unaffected by the outcome of the appeal. He meant for
Perez to stay in jail for a total of 36 months, period.1
Just reciting all this is dizzying. It’s no wonder the
parties are confused—so are we. But we have a solution.
First off, we can make short work of the appeal regarding
Judge Kendall’s modified sentence. The government agrees
that she lacked jurisdiction to reopen the revocation
proceedings; like Perez, it urges us to reinstate the original
sentence of 14 months imprisonment and 22 months
supervised release. We have no other option. Because
Judge Kendall modified the sentence in a substantive way
well beyond the seven-day period set forth in Rule 35(a) of
the Federal Rules of Criminal Procedure, the change fails,
at a minimum, for want of jurisdiction. See United States v.
Goode, 342 F.3d 741, 743 (7th Cir. 2003); cf. Fed. R. Crim. P.
36 (authorizing correction of clerical errors at any time).

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Nos. 07-3947 & 08-2481 5
Yet the parties still cross swords over Judge Castillo’s
sentence. After reviewing the transcripts and filings, we
cannot say with certainty exactly what Judge Castillo
intended. We shall therefore vacate the sentence and
remand the matter to Judge Castillo so he can craft a new
sentence reflecting his original intent. See United States v.
Daugherty, 269 U.S. 360, 363 (1926) (“Sentences in criminal
cases should reveal with fair certainty the intent of the
court and exclude any serious misapprehensions by those
who must execute them.”); United States v. Bullock, 857 F.2d
367, 372 (7th Cir. 1988) (remanding where sentence was
unclear); United States v. Garza, 448 F.3d 294, 302 (5th Cir.
2006) (same). To the extent the parties also take issue with
the supervised release component of Judge Castillo’s
sentence, that, too, may be cleared up on remand.
The amended sentence imposed by Judge Kendall is
VACATED, and the original sentence is REINSTATED. The
sentence imposed by Judge Castillo is VACATED, and the
case is REMANDED for resentencing.
4-28-09

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