United States v. Robert Perry ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 6, 2012
Decided August 8, 20121
Before
William J. Bauer, Circuit Judge
2
John L. Coffey, Circuit Judge
Daniel A. Manion, Circuit Judge
UNITED STATES OF AMERICA, ] Appeal from the United States
Plaintiff-Appellee, ] District Court for the Northern
] District of Illinois, Eastern Division.
No. 12-1838 v. ]
] No. 1:03-cr-00778
ROBERT PERRY, ]
Defendant-Appellant. ] Samuel Der-Yeghiayan,
] Judge.
ORDER
Everyone now agrees that the district court exceeded the statutory maximum
when it tacked on a term of five, instead of three, years supervised release to Robert
Perry’s 180 month prison sentence. Perry tried to correct the sentencing error six years
after the judgment in his case became final by filing a Motion to Correct Clerical Error
1
This appeal is successive to Appeal 05-3982 and has been submitted to this panel under
Operating Procedure 6(b). After examining the briefs and record, we have concluded that oral
argument is unnecessary. The appeal, therefore, is submitted on the briefs and record.
2
Judge Coffey was the third member of the panel in Appeal 05-3982, but took no part in
the decision in Appeal 12-1838.
No. 12-1838 Page 2
under Rule 36 of the Federal Rules of Criminal Procedure. The district court correctly
determined that Rule 36 did not apply and denied Perry’s motion because the error was
not clerical in nature as this court has interpreted the rule. See United States v. Lawrence,
535 F.3d 631 (7th Cir. 2008).
This does not leave Perry without a means to correct the district court’s mistake.
A motion under 28 U.S.C. § 2255 permits a district court to correct a sentencing mistake
such as the one in this case. See United States v. Boyd, 591 F.3d 953, 956 (7th Cir. 2010)
(§ 2255 can be used to challenge a sentence and not just the conviction that underlies it).
And, contrary to the district court’s observation, relief under § 2255 is available if the
government waives the one year limitations defense contained in 28 U.S.C. § 2255(f),
permitting the district court to correct its sentencing error. See Wood v. Milyard, 132 S.
Ct. 1826 (2012). This seems likely in view of its concession that Perry is correct and the
term of supervised release for Perry’s crimes should have been limited to three years.
But as to the matter now before us, the district court’s Order denying Perry’s
Rule 36 motion is AFFIRMED.