United States v. Jose Quintero ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-4033 and 09-1048
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE L. Q UINTERO,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 3:08-cr-00088-bbc-1—Barbara B. Crabb, Chief Judge.
A RGUED M AY 26, 2009—D ECIDED JULY 13, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
B AUER, Circuit Judge. A grand jury charged Jose Luis
Quintero with conspiracy to possess with intent to dis-
tribute cocaine. 21 U.S.C. § 846. Included in the indictment
was a count for the forfeiture of a 1983 Chevrolet Caprice.
Quintero pleaded guilty and, pursuant to the plea agree-
ment, agreed that he would not challenge the forfeiture
of the car.
2 Nos. 08-4033 and 09-1048
After Quintero entered his plea, a preliminary order
of forfeiture was entered. At sentencing, although the
district court sentenced Quintero to 64 months’ imprison-
ment, the court neither mentioned the forfeiture of
the Caprice nor included the forfeiture in the written
follow-up judgment.
Quintero appealed from the judgment of conviction.
A day after Quintero filed his notice of appeal, the gov-
ernment moved to amend Quintero’s judgment to
include the omitted forfeiture of the Caprice under
Federal Rule of Criminal Procedure 36. Quintero argued
that his notice of appeal divested the district court of
subject matter jurisdiction and that the government’s
motion to include the car’s forfeiture was not an attempt
to correct a clerical error, but to substantively amend
his sentence. The district court found the omission a
clerical error under Rule 36; it ordered that the for-
feiture provision be included in the judgment. The
district court then signed a final order of forfeiture for
the Chevy Caprice.
This timely appeal followed.
Quintero argues that the district court lacked the au-
thority to amend the written judgment to include the
forfeiture. This raises a question of law, and our review of
the district court’s authority is de novo. United States v.
Daddino, 5 F.3d 262, 264 (7th Cir. 1993).
Quintero argues that the district court lacked juris-
diction to substantially modify his sentence to include
forfeiture because no mention of forfeiture was made
Nos. 08-4033 and 09-1048 3
during the oral pronouncement of his sentence or in the
written judgment. Quintero claims that the district
court lacked the authority to amend the judgment after
a notice of appeal had been filed.
According to Quintero, Fed. R. Crim. P. 36, which
permits district courts to correct clerical errors in judg-
ments at any time, does not apply because there was
no clerical error, and the government’s motion to amend
the judgment required a substantive modification of
the criminal sentence. Quintero argues that we should
follow United States v. Pease, 331 F.3d 809 (11th Cir. 2003).
There, pursuant to a plea agreement that included a
forfeiture count, a defendant pleaded guilty and the
district court entered a preliminary order of forfeiture.
Id. at 811. The court, however, sentenced the defendant
but did not raise the issue of criminal forfeiture. Id.
The Eleventh Circuit held that an attempt to amend the
judgment to include the forfeiture was a substantive
alteration of a sentence, which the district court lacked
the jurisdiction to make. Id. at 815-16.
We disagree; we find that the district court had juris-
diction to amend the judgment to include the forfeiture.
The failure to include the forfeiture of the ’83 Caprice in
the judgment was a clerical error, which courts have
jurisdiction to correct at any time. The district court
corrected the criminal judgment to include what every-
one intended, expected, and agreed to in the plea agree-
ment. Quintero’s indictment included the forfeiture;
he agreed to the forfeiture in his plea; he waived all
challenges to the forfeiture; and the district entered a
4 Nos. 08-4033 and 09-1048
preliminary order of forfeiture. The district court did not
re-write history, or substantially modify the sentence,
when it amended the judgment. The proceedings leading
up to sentencing demonstrated that the district court
intended, and all parties understood, that the Caprice
would be forfeited. Indeed, Fed. R. Crim. P. 32.2(b)(3)
required the clerk to include this agreed forfeiture in
the judgment even though no one mentioned the subject
at sentencing.
In Young v. United States, 489 F.3d 313, 316 (7th Cir. 2007)
we “suggested disagreement with the conclusion that a
failure to incorporate the order of forfeiture into the
judgment of conviction undermines a criminal forfeiture.”
Now, we affirmatively rule that the failure to include
forfeiture in a judgment, that everyone intended to be
included, constitutes a clerical error, correctable under
Rule 36. See United States v. Yeje-Cabrera, 430 F.3d 1, 15
(1st Cir. 2005); United States v. Bennett, 423 F.3d 271, 281
(3d Cir. 2005); United States v. Loe, 248 F.3d 449, 464
(5th Cir. 2001); United States v. Hatcher, 323 F.3d 666, 673-
74 (8th Cir. 2003).
Finally, while it is true that, in general, filing a notice
of appeal shifts jurisdiction from the district court to
the court of appeals, a district court still retains authority
to correct clerical errors under Rule 36 when that does
not affect an issue already before the appellate court.
Compare United States v. Burton, 543 F.3d 950, 952 (7th
Cir. 2008), with United States v. McHugh, 528 F.3d 538
(7th Cir. 2008).
Nos. 08-4033 and 09-1048 5
The district court properly corrected a clerical error—
the failure to include the forfeiture of the 1983 Caprice
in the judgment—under Rule 36. Therefore, we A FFIRM .
7-13-09