                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-1638
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

RODRICK SMITH,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
        No. 03 CR 844-10—James F. Holderman, Judge.
                          ____________
 ARGUED FEBRUARY 9, 2006—DECIDED FEBRUARY 23, 2006
                    ____________


  Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
   EASTERBROOK, Circuit Judge. Rodrick Smith pleaded
guilty to drug offenses and was sentenced in November
2004—between our decision in United States v. Booker, 375
F.3d 508 (7th Cir. July 9, 2004), and the Supreme Court’s,
543 U.S. 220 (Jan. 12, 2005). We held in Booker that the
Sentencing Reform Act of 1984 violates the sixth amend-
ment by giving to judges rather than juries the role of
finding facts that prescribe maximum lawful sentences. The
Supreme Court agreed but added that the Sentencing
Guidelines continue to provide norms to guide judicial
discretion, and that, with the Guidelines reduced to advi-
sory status, judges retain fact-finding duties.
2                                                No. 05-1638

   Our Booker opinion suggested that, pending the Supreme
Court’s resolution of the Sentencing Guidelines’ status,
district judges select alternative sentences: one to be
effective if the Guidelines survived, another to control if
they were jettisoned. Whichever side was aggrieved by the
sentence actually imposed could appeal, and we would
affirm or remand as appropriate after the Supreme Court’s
decision. The district court pronounced such an alternative
for Smith: 37 months if the Guidelines survived, 24 months
if they did not. The sentence actually imposed was 37
months, so Smith was the natural appellant. We would
have held any appeal for the Supreme Court’s decision,
which was imminent.
   But Smith did not appeal. Instead he waited until the
Supreme Court’s opinion issued, and in February 2005 he
filed a motion asking the district court to substitute the 24-
month term for the 37-month one. The district court denied
this motion, stating that as far as he is concerned the
Guidelines had survived. A 24-month sentence, he wrote,
would have been appropriate only had the Supreme Court
thrown the Guidelines out the window and reinstated the
system that existed before the Sentencing Reform Act.
Booker did not do that, and the district judge concluded that
37 months is an appropriate sentence for Smith as long as
the Guidelines remain the starting point, as they do. See
United States v. Dean, 414 F.3d 725 (7th Cir. 2005); United
States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
   Smith’s appeal is too late when measured from the date
on which his 37-month sentence was imposed. (The sen-
tence, an unconditional 37 months, left nothing up in the
air, so its imposition was a final and appealable judgment.)
The appeal is timely with respect to the order denying the
motion to reduce the sentence to 24 months, but what
authority is there for a district judge to do that? One
fundamental change made in 1984 was to provide that, once
sentence has been imposed, neither the judge nor a parole
No. 05-1638                                                  3

board may make changes. Prisoners thus know from the
day of sentencing when they may expect to be free, if they
behave in prison and receive a 15% reduction from good-
time credits. The public also knows that sentences are real;
parole early in a term, and other reductions common before
the 1984 legislation, had made the formal sentences look
phony, and sometimes the process had bewildered even the
judges, who could not be sure how much time a defendant
would serve. See United States v. Addonizio, 442 U.S. 178
(1979).
   Under the Sentencing Reform Act, district judges have
limited authority to alter sentences after their imposition:
     The court may not modify a term of imprison-
     ment once it has been imposed except that—
        (1) in any case—
              (A) the court, upon motion of the Director
              of the Bureau of Prisons, may reduce the
              term of imprisonment, after considering
              the factors set forth in section 3553(a) to
              the extent that they are applicable, if it
              finds that—
                (i) extraordinary and compelling rea-
                sons warrant such a reduction; or
                (ii) the defendant is at least 70 years of
                age, has served at least 30 years in
                prison, pursuant to a sentence imposed
                under section 3559(c), for the offense
                or offenses for which the defendant is
                currently imprisoned, and a determi-
                nation has been made by the Director
                of the Bureau of Prisons that the de-
                fendant is not a danger to the safety of
                any other person or the community, as
                provided under section 3142(g);
4                                                No. 05-1638

             and that such a reduction is consistent
             with applicable policy statements issued
             by the Sentencing Commission; and
             (B) the court may modify an imposed
             term of imprisonment to the extent other-
             wise expressly permitted by statute or by
             Rule 35 of the Federal Rules of Criminal
             Procedure; and
        (2) in the case of a defendant who has been
        sentenced to a term of imprisonment based on
        a sentencing range that has subsequently
        been lowered by the Sentencing Commission
        pursuant to 28 U.S.C. 994(o), upon motion of
        the defendant or the Director of the Bureau of
        Prisons, or on its own motion, the court may
        reduce the term of imprisonment, after con-
        sidering the factors set forth in section
        3553(a) to the extent that they are applicable,
        if such a reduction is consistent with applica-
        ble policy statements issued by the Sentenc-
        ing Commission.
18 U.S.C. §3582(c). Rule 35 in turn authorizes a district
judge to modify a sentence within seven days of its imposi-
tion to correct a technical error, or on the prosecutor’s
motion to reward substantial assistance rendered after the
sentence had been imposed. Neither of these circumstances
pertains to Smith, nor does any of the exceptions in
§3582(c) assist him. Because §3582(c) limits the substantive
authority of the district court, it is a real “jurisdictional”
rule rather than a case-processing requirement. See
Eberhart v. United States, 126 S. Ct. 403 (2005). It is the
sort of limit that must be respected, and which we must
enforce even if everyone else has ignored it. See United
States v. Lloyd, 398 F.3d 978 (7th Cir. 2005); United States
v. Vega, 241 F.3d 910 (7th Cir. 2001).
No. 05-1638                                                5

   Smith has never worried about the district court’s power
to act on his motion, and the district judge did not discuss
that subject. The prosecutor has given the matter some
thought, but the only source of authority the Executive
Branch has suggested—Fed. R. Crim. P. 36—does not
supply what is necessary. Rule 36 permits a district judge
to correct clerical errors in judgments. Fixing a judgment so
that it accurately reflects the original sentence does not
“modify” the sentence and hence falls outside §3582(c). The
prosecutor contends that the judgment entered in Novem-
ber 2004 should be corrected to conform to the oral pro-
nouncement, which was 37 months if the Guidelines should
be sustained by the Supreme Court or 24 if they should be
vitiated.
   Yet the district judge did not think the written judgment
in error and did not invoke Rule 36. A term of 37 months is
exactly what the judge wanted. The court did not leave it to
the Director of the Bureau of Prisons to determine, in light
of Booker, whether to release Smith after 24 months.
Instead the judge reserved that decision to himself.
  Suppose that the judge had spelled this out—either on
the date he imposed sentence, or later by using Rule 36.
Then the judgment would have read something like: “The
defendant is committed to the custody of the United States
Bureau of Prisons for a total term of 37 months, unless the
Supreme Court of the United States holds the Sentencing
Guidelines to be ineffectual; in that event, this court will
reduce the term to 24 months.” Such a judgment would
reserve a right to modify a sentence. Yet district judges
cannot grant themselves authority that has been withdrawn
by the legislature; the point of §3582(c) is to block post-
sentencing modifications that district judges want to make,
not to furnish judges with an excuse to deny motions they
would not have granted anyway. So using Rule 36 to insert
a reservation of power into the judgment would not do
6                                                No. 05-1638

Smith any good; the district judge still could not cut Smith’s
sentence to 24 months.
   Imagine some variations on the approach that the
prosecutor suggested. Suppose the district judge, acting in
a case in which he had denied a motion to suppress evi-
dence seized from the defendant’s residence, had written:
“Defendant is committed to the custody of the United States
Bureau of Prisons for a total term of 37 months, unless the
Supreme Court of the United States issues a decision
holding the exclusionary rule applicable to violations of the
fourth amendment’s knock-and-announce principle; should
that occur, the court will reduce the sentence to 24 months.”
That’s not a fanciful possibility. This court has held that
entry without adequate delay after an announcement of
one’s authority to conduct a search can lead to damages but
not suppression, see United States v. Langford, 314 F.3d
892 (7th Cir. 2002), and the Supreme Court has that
question under consideration in Hudson v. Michigan, cert.
granted, 125 S. Ct. 2964 (2005) (argued Jan. 9, 2006). It
might seem sensible to both a defendant and the court to
impose a sentence whose length depends on a condition
subsequent: the outcome of Hudson. Yet at oral argument
both sides agreed that an attempt to reserve the power to
resentence a defendant after Hudson would be ineffectual.
A defendant may appeal and ask us to hold for Hudson, but
a district judge may not grant himself an open-ended period
to revise a sentence in light of new authority.
   Or consider this sentence: “37 months in prison, but if
the defendant is well behaved for the first year then 24
months.” Judges regularly used the pre-1987 version of
Rule 35, which permitted reductions within 120 days after
the Supreme Court denied certiorari, to maintain effective
control of a sentence for several years following its imposi-
tion and to take account of conduct in prison and other
events that the judge deemed pertinent to rehabilitation.
No. 05-1638                                                 7

Section 3582(c) abolished that power. Yet if Smith and the
prosecutor are correct in this case, then all a district judge
need do to maintain indefinite control over the length of a
defendant’s imprisonment is assert that control in the
judgment, by imposing a condition subsequent. That can’t
be right; we hold that it is not right.
   Before wrapping up, we must consider the possibility
that Smith’s notice of appeal could be treated as requesting
direct review of the original judgment, just as if he had
appealed in November 2004 and we had held the proceed-
ings for Booker’s final disposition. A belated appeal could
not be justified by the “unique circumstances doctrine” of
Thompson v. INS, 375 U.S. 384 (1964), which as explained
in Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989),
comes into play “where a party has performed an act which,
if properly done, would postpone the deadline for filing his
appeal and has received specific assurance by a judicial
officer that this act has been properly done.” Smith did not
take any step that, if done properly, would postpone
appealability of his sentence. Nor did the district judge
assure him that an appeal in November 2004 was unneces-
sary to preserve his rights.
   Eberhart suggests that the time limit for appeal is
nothing but a “case processing rule” that a court may
disregard if the party that would benefit from the rule’s
enforcement waives or forfeits its rights. See also Kontrick
v. Ryan, 540 U.S. 443 (2004). The Supreme Court has called
the time limit “mandatory and jurisdictional” dozens of
times, however, and we are reluctant to upset that
understanding—not only because the Justices have cau-
tioned appellate courts to use care in treating such declara-
tions as dicta that may be swept aside, see Eberhart, 126 S.
Ct. at 407, but also because Smith himself does not charac-
terize this as a belated appeal of the sentence imposed in
November 2004. Both sides treat these appellate proceed-
8                                                No. 05-1638

ings as limited to review of the decision the district court
made in March 2005. Taking them at their word enables us
to leave for another day—when the subject has been fully
briefed—the question whether an untimely appeal may be
entertained with the consent (or after the oversight) of an
appellee.
   The decision of the district court is vacated, and the case
is remanded with instructions to dismiss the motion for lack
of subject-matter jurisdiction.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—2-23-06
