United States v. Anselmo Zepeda , 295 F. App'x 847 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 October 2, 2008*
Decided October 9, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN C LAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07-2761
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Northern District of Indiana,
Hammond Division.
v.
ANSELMO ZEPEDA, No. 2:05 CR 41-04
Defendant-Appellant. Rudy Lozano, Judge.
Order
Anselmo Zepeda pleaded guilty to a cocaine offense, 21 U.S.C. §§ 841(a)(1), 846, and
was sentenced to 210 months’ imprisonment, the bottom of the range under the Sen-
tencing Guidelines. (The judge found that Zepeda has an offense level of 37 and a crimi-
nal history category of I, producing a range of 210 to 262 months.) Zepeda’s lawyer has
filed an Anders brief and moved to withdraw, representing that he cannot identify a
non-frivolous issue. See Anders v. California, 386 U.S. 738 (1967). We invited Zepeda to
file a response, see Circuit Rule 51(b), but he has not done so.
Counsel’s submission covers several potential issues, and we agree with his conclu-
sion that each of these issues would be frivolous. But counsel supposes that Zepeda has
been sentenced to 150 months; the written judgment gives the term as 210. Counsel
does not appear to recognize that it will take some legal work to achieve a sentence of
150 months for his client.
Counsel’s belief comes from the transcript of sentencing. When oral and written
sentences conflict, the oral sentence controls because it was pronounced in the accused’s
presence—and the accused has a right to be present for sentencing. See United States v.
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-2761 Page 2
McHugh, 528 F.3d 538, 539 (7th Cir. 2008). The figure “150” in the transcript is not neces-
sarily conclusive, however. Perhaps the court reporter misunderstood what the judge
said. Or perhaps the judge has used his authority to correct an error under Fed. R.
Crim. P. 35(a), a step that can be taken within seven days of sentencing. Either way, an
oral misstep is not conclusive, see United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.
1998)—though correction may require the defendant’s return to the courtroom.
The oral pronouncement is internally contradictory. The 150-month figure does not
stand alone. The judge also told Zepeda that the Guideline range is 210 to 262 months,
and that “[t]he court is imposing a sentence at the bottom end of the Guidelines”. This
implies that the written judgment accurately reflects the sentence. This court has never
held that an oral slip of the tongue will undo a lawfully calculated sentence. See United
States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997) (leaving open the appropriate
treatment of oral pronouncements that appear to be mistaken). Perhaps, however, the
district judge really wants Zepeda to serve 150 months and the written judgment is in
error. If this appeal is dismissed under Anders, the sentence will remain at 210 months,
for the Bureau of Prisons implements the writing rather than working through tran-
scripts. Department of Justice, Legal Resource Guide to the Federal Bureau of Prisons 10, 12
(2008). There is therefore legal work still to be done on Zepeda’s behalf.
The motion to withdraw is denied. The opening brief is due 30 days from today, and
the remaining briefs as provided in Fed. R. App. P. 31(a)(1).