In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1675

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH A. WISCH,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-CR-608--Harry D. Leinenweber, Judge.

Argued September 26, 2001--Decided December 26, 2001



  Before FLAUM, Chief Judge, and COFFEY and
MANION, Circuit Judges.

  COFFEY, Circuit Judge. Kenneth A. Wisch was
indicted on twenty-two counts of violating the
Brady Handgun Violence Prevention Act, 18
U.S.C. sec. 921 et seq. Wisch pled guilty
to each one of the counts and was
sentenced to thirty-seven months in
prison and a three-year term of
supervised release, with the sentences of
incarceration and parole to run
concurrent on all counts. Wisch also was
fined $6,000. Thereafter, Wisch filed a
motion asking the district court to
correct or modify the sentence, arguing
that the sentencing guidelines had been
misapplied in one or more respects. The
trial judge denied the motion, and Wisch
appeals. We affirm.

I.   FACTUAL BACKGROUND

  Wisch is a federally-licensed firearms
salesman in south suburban Chicago. Under
federal law, all such dealers must
maintain certain records, known as Form
4473s, which memorialize information
about the weapons sold and the purchasers
of those weapons. Some of this
information includes: (1) the type and
serial number of the weapon; (2) the
address, date and place of birth of the
customer; and (3) the criminal history of
the customer. Furthermore, the purchaser
of a firearm must certify on Form 4473
that he is neither a convicted felon, an
illegal alien, a drug addict, nor a
fugitive from justice. It is unlawful for
a dealer to do business with someone who
refuses to affirmatively attest to these
facts.

  In order to ensure that firearms dealers
are following the law and keeping
accurate records, the Bureau of Alcohol,
Tobacco and Firearms ("ATF") routinely
reviews the data submitted by dealers to
the federal government. Through its
normal law enforcement activities, ATF
became aware that some of Wisch’s Form
4473s contained various inconsistencies
and misstatements. A subsequent, more
detailed federal probe coordinated by
several ATF agents led the bureau to
conclude that Wisch was conspiring to
falsify records in order that
unidentified individuals could obtain
guns without revealing their true
identities on the forms that Wisch filed
with the government.

  A grand jury returned a true bill
against Wisch in August 1999, and an ATF
agent interviewed him shortly thereafter.
Wisch admitted to the illicit sale of
several guns that the agency had
recovered in connection with several
crimes committed by other individuals in
the Chicago area, including a homicide,
an auto burglary, and a handful of drug-
and gang-related shootings. Wisch also
allowed the agent to review his customer
registry, and the agent concluded that
Wisch had falsely completed more than one
hundred Form 4473s, usually by forging
signatures on the documents. The agency
further concluded that Wisch had sold
more than sixty firearms to straw
purchasers, with full knowledge that
these buyers were providing him with
phony names and government identification
cards to obtain weapons without
subjecting themselves to federal
background checks.

  Rather than proceed to trial, Wisch,
with the assistance of counsel, pled
guilty to the twenty-two charges against
him./1 The district judge accepted the
plea, referred the matter to the
probation department for a pre-sentence
report, and continued the matter for a
sentencing hearing. After reviewing the
sentencing guidelines and the client
information as applicable to the offenses
charged in the indictment, a probation
officer recommended the application of a
six-level enhancement authorized by
U.S.S.G. sec. 2K2.1(b)(1)(F) for persons
who illegally traffic in more than fifty
firearms. Because Wisch chose to sell
small, semi-automatic weapons to
customers who were concealing their true
identities and criminal backgrounds, the
officer also recommended the imposition
of a four-level enhancement allowed by
sec. 2K2.1(b)(5) for the possession or
transfer of any firearm "with knowledge,
intent, or reason to believe that it
would be used or possessed in connection
with another felony offense."

  At sentencing, Wisch’s attorney attacked
only one aspect of the sentencing report:
the enhancement under sec. 2K2.1(b)(5).
Counsel began with the premise that the
Second Amendment protects the freedom of
law-abiding citizens to receive and
possess handguns within the confines of
the criminal law. Unfortunately, as
counsel acknowledged, handguns are also a
preferred weapon of criminals. Therefore,
due to the nature of demand in the
relevant market, some foreseeable number
of legally-sold guns are bound inevitably
to be resold or transferred to persons
who will use them to commit felonies.
Counsel went on to argue that gun dealers
should not be liable for the subsequent
misconduct of their customers because
such activity is beyond the intent or
control of the dealers.

  We interpret counsel’s argument to have
been that weapons vendors should not be
eligible for a sec. 2K2.1(b)(5)
enhancement if the basis for such an
enhancement is activity that is lawful,
i.e., the sale of guns by a federally
licensed dealer. In response, the
district judge reasoned that Wisch pled
guilty to behavior which cannot even
remotely be equated to that of a law-
abiding salesperson. Unlike other gun
dealers who market weapons exclusively to
legitimate patrons with valid state-
issued firearms owner’s permits, and who
fill out the government registration
forms truthfully and accurately, Wisch’s
guilty plea to the charges made in the
indictment established that he: (1)
knowingly recorded false and fraudulent
information about the names of his
customers; and (2) wilfully sold handguns
without recording the proper names, ages,
and places of residence of his customers.
For these reasons and others detailed in
the record, the trial judge concluded
that Wisch had an ample basis to infer
that some of his clients were felons or
straw purchasers for felons and that his
weapons would be used in criminal
activity. The court, therefore, imposed
upon Defendant Wisch a sec. 2K2.1(b)(5)
enhancement. See United States v. Martin,
78 F.3d 808 (2d Cir. 1996) (affirming
similar ruling when dealer falsified Form
4473s in connection with the sale of
multiple low-grade handguns to same group
of customers). The court determined that
Wisch had an overall offense level of
nineteen points, which yields a
sentencing range of thirty to thirty-
seven months. After further review, the
court sentenced Wisch to the maximum
allowable term of imprisonment, a three-
year term of supervised release, and a
fine of $6,000.

II.   DISCUSSION

  Wisch substituted attorneys shortly
after the sentencing hearing, and his new
counsel, who also is currently
representing him on appeal, filed a
"Motion To Correct Or Modify Sentence By
A Person Who Was Sentenced To Federal
Custody." The motion asked the district
court to reconsider the sentence on the
grounds that: (1) the court had
erroneously applied the sentencing
guidelines; and (2) Wisch’s prior
attorney had rendered ineffective
assistance by failing to oppose the sec.
2K2.1(b)(1)(F) enhancement at the
sentencing hearing. The judge held a
hearing and construed the Motion To
Correct as being filed under Rule 35(c)
of the Federal Rules of Criminal
Procedure. Rule 35(c) provides that the
district court, "acting within 7 days
after the imposition of sentence, may
correct a sentence that was imposed as a
result of arithmetical, technical, or
other clear error." The district judge
focused on Wisch’s first argument and
ruled that he lacked the authority to
grant the motion, stating, "Well, it
appears to me that, clearly, this is not
the type of error that can be corrected,
anyway. So, the motion to modify is
denied." (Tr. at 6 (Mar. 9, 2001)).

  In this appeal, defense counsel claims
that the district judge misunderstood the
essence of the Motion To Correct. The
motion, counsel says, was a collateral
petition for habeas relief under 28
U.S.C. sec. 2255, rather than a simple
motion for reconsideration under Rule
35(c). Counsel urges us to issue a
certificate of appealability, delve into
the merits of Wisch’s constitutional
challenge, and also consider the question
of whether the district judge clearly
erred when he applied the sentencing
guidelines. We decline to do so. We
conclude that the motion was properly
construed as having been filed under Rule
35(c), and we hold that the trial court
was without jurisdiction to hear the
motion.

A.   Reading Pleadings

  In situations like this, when an
appellant who was represented by counsel
argues that his pleadings have been
misconstrued, we review the district
court’s ruling for clear error. On the
one hand, to be sure, the court could
have interpreted the motion as being a
sec. 2255 petition. The motion was styled
as a "Motion To Correct Or Modify
Sentence By A Person Who Was Sentenced To
Federal Custody," and it set forth facts
and legal arguments in the format and
order suggested by Rule 2(b) of the Rules
Governing Section 2255 Proceedings. But
on the other hand, the motion neither
invoked nor even referred to sec. 2255 or
any other procedural rule. Allegations
that the district judge misapplied the
sentencing guidelines are not reviewable
under sec. 2255. Scott v. United States,
997 F.2d 340 (7th Cir. 1993).
Furthermore, Wisch’s appellate counsel
has not supplied us with any extrinsic
evidence, much less case law, that would
tend to support his ineffective
assistance claim, despite our repeated
statements that such challenges almost
always depend on the production of
evidence outside the initial record, such
as an explanation from trial counsel
about the reasons for his decisions. See,
e.g., United States v. Kellum, 42 F.3d
1087, 1095 (7th Cir. 1994) (citing Guinan
v. United States, 6 F.3d 468, 471 (7th
Cir. 1993)); see also United States v.
Bradford, 78 F.3d 1216, 1225 (7th Cir.
1996) (finding no ineffective assistance
when counsel failed to argue for downward
departure for which defendant was
ineligible).

  Moreover, when Wisch’s attorney argued
this motion at the trial court level, he
gave no indication that the request was
brought pursuant to anything other than
Rule 35(c). The Government believed Wisch
was proceeding under this rule; it filed
a brief in opposition arguing that the
court could not consider the motion
because the rule’s seven-day period for
correcting sentences had expired. The
Government again raised this objection in
open court. At that time, the trial judge
proceeded to read aloud the text of Rule
35(c), thereby inviting defense counsel
either to dispute the Government’s
interpretation of the rule or to inform
the court that the Government’s argument
was irrelevant to the instant proceedings
because, in fact, the pleading was a
habeas petition rather than a motion to
reconsider. Instead of stating that he
was proceeding under sec. 2255, defense
counsel tried to convince the district
judge that his motion was timely filed.
Why argue 35(c)’s statute of limitations
if you are not bringing a 35(c) motion?
Finally, when asked about the basis of
his motion, counsel responded that he was
requesting the court to "reconsider how
the Government computed the defendant’s
sentence." (Tr. at 5 (Mar. 9, 2001)). A
request of this nature can come only
under Rule 35(c), Scott, 997 F.2d at 341,
and even then must be limited to a claim
of "arithmetical, technical, or other
clear error," Fed. R. Crim. P. 35(c),
rather than a quarrel with the court’s
discretionary application of the
guidelines to the facts of the offense.
See United States v. Porretta, 116 F.3d
296, 300 (7th Cir. 1997); United States
v. Dumont, 936 F.2d 292, 296-97 (7th Cir.
1991).

  Dozens of pleadings cross the desks of
our district judges every day. When a
motion fails to invoke any
specificprocedural rule, and the district
court refuses to grant a hearing, the
court "must look to the motion’s
substance, including the relief
requested, in order to properly
characterize it." United States v.
Morillo, 8 F.3d 864, 867 (1st Cir. 1993).
If the court affords the parties an
opportunity to be heard, the moving party
has an obligation to make clear the
precise nature and procedural basis of
his motion. In this case, the district
court clearly indicated its intent to
construe Wisch’s filing as a 35(c)
petition, and defense counsel went along
with the court without objection. Such a
construction decidedly works to Wisch’s
benefit, given AEDPA’s limits on post-
conviction proceedings. We are not
convinced that the trial judge committed
clear error. See id. at 868 (finding a
"motion to correct sentence" to be "the
functional equivalent" of a Rule 35(c)
motion). Cf. Henderson v. United States,
264 F.3d 709 (7th Cir. 2001) (discussing
procedural safeguards required prior to
conversion of mislabeled Rule 33 motion
into sec. 2255 petition); Fed. R. Civ. P.
12(c).

B.   7-Day Jurisdictional Window

  Having concluded that Wisch’s Motion To
Correct was brought under Rule 35(c), we
thus review de novo the legal question of
whether the district court had
jurisdiction, under the rule, to grant
Wisch’s request for relief. United States
v. Blackwell, 81 F.3d 945, 947 (10th Cir.
1996). Excluding weekends and legal
holidays, the district judge has "7 days
after the imposition of sentence" to
correct its alleged error. Fed. R. Crim. P.
45(a), 35(c). The time limit is
jurisdictional, United States v. Vega,
241 F.3d 910, 911-12 (7th Cir. 2001) (per
curiam), and, furthermore, the motion
must be ruled on by the district court
within seven days, not simply filed with
the clerk of court during that time. What
this means is that a court’s failure to
rule is functionally equivalent to an
outright denial on the merits, thus
"making the judgment final on the date
the district judge’s power to alter the
sentence expired." United States v.
Turner, 998 F.2d 534, 536 (7th Cir.
1993).

  The First Circuit and we have held that
the imposition of sentence occurs on the
date the judgment is entered by the clerk
of court. United States v. Clay, 37 F.3d
338, 340 (7th Cir. 1994); Turner, 998
F.2d at 536; Morillo, 8 F.3d at 869 n.8.
The Government invites us to overrule
Clay and Turner and join five other
circuits in holding that a sentence
isimposed on the day it is orally
pronounced. See United States v. Aguirre,
214 F.3d 1122, 1125 (9th Cir. 2000);
United States v. Morrison, 204 F.3d 1091,
1093 (11th Cir. 2000); United States v.
Layman, 116 F.3d 105, 108 (4th Cir.
1997); United States v. Abreu-Cabrera, 64
F.3d 67, 73-74 (2d Cir. 1995); United
States v. Townsend, 33 F.3d 1230, 1231
(10th Cir. 1994); see also People v.
Cepeda, 1986 WL 68898 at *3 (D. Guam
1986). This is not the ideal case for
reconsidering the wisdom of our prior
decisions, given that our holding does
not turn on which interpretation of the
statute of limitations is more sound. The
trial judge orally pronounced sentence
February 16, 2001, and the clerk entered
judgment February 22, but Wisch’s motion
was not ruled on until March 9. Thus,
regardless of whether the clock began to
run on February 16 or February 22, the
trial court’s jurisdiction had lapsed
before the date of its ruling. At this
juncture, therefore, it is enough
summarily to reaffirm our belief that the
holdings in Clay and Turner are justified
by the text of the rule, congressional
intent, and compelling pragmatic
considerations. See Andrew P. Rittenberg,
Comment, "Imposing" a Sentence under Rule
35(c), 65 U. Chi. L. Rev. 285 (1998).

  By applying the "Entry of Judgment Rule"
consistently with the tolling
requirements of Rule 4(b) of the Federal
Rules of Appellate Procedure, we minimize
any confusion about the appellate statute
of limitations that might lead to the
forfeiture of direct appeals due to
untimely filings./2 See United States
v. Evans, 92 F.3d 540, 545 (7th Cir.
1996). In addition, by granting district
courts several extra days to correct
clearly obvious mistakes--but not, it
must be emphasized, to reimpose sentences
based on a subsequent change of heart,
see Poretta, 116 F.3d at 300 (quoting
advisory committee notes)--we also strike
a proper balance between finality in
judgments and judicial economy. "Given
the absurdity, inefficiency, and cost of
requiring an appeal to correct an obvious
mistake, it makes sense to adopt the more
lenient standard, so long as doing so
does not open the door to abuse."
Rittenberg, supra at 312. We are unaware
of many instances when our district
courts have abused their discretionary
authority under Rule 35(c), and we are
confident that a firm application of the
rule’s narrow "clear error" standard
offers more than ample protection against
the threat of improper alterations
tosentences after they are orally
pronounced. See, e.g., United States v.
Richardson, 1996 U.S. Dist. LEXIS 21887,
1998 WL 59874 at *1 (N.D. Ill. 1998)
(acknowledging yet properly applying
rule’s harsh jurisdictional and
substantive provisions); United States v.
Mosley, 1997 U.S. Dist. LEXIS 12624, 1997
WL 534160 at *5 (N.D. Ill. 1997) (same).
We see no reason to further limit the
time period allowed for such alterations.

  In the case before us, the time period
for correcting Wisch’s sentence expired
nearly a full business week prior to the
date when the district court ruled on
Wisch’s pleading. Although the district
judge could have ruled that the motion
was untimely, we also agree that it was
proper for him to have denied the motion
on the basis that he was not authorized
to grant the substantive relief sought.
"Because the district court did not
impose [Wisch’s] sentence as a result of
’arithmetical, technical, or other clear
error,’ the district court correctly held
that it lacked jurisdiction to correct
the sentence under Federal Rule of
Criminal Procedure 35(c)." United States
v. Durham, 178 F.3d 796, 800 (6th Cir.
1999).

  The judgment of the district court is
AFFIRMED.

FOOTNOTES

/1 Wisch was charged with three separate crimes
relating to each of seven specific gun sales.
These charges included: (1) knowingly and wilful-
ly falsifying the true identity of the customer;
(2) wilfully selling the firearm without noting
on Form 4473 the customer’s name, age, and resi-
dence; and (3) omitting or wilfully making false
entries on the form. Wisch additionally was
charged with a single count of conspiracy to
defraud the United States by impeding, impairing
or obstructing the lawful functions of the ATF.

/2 A pending Rule 35(c) motion tolls the time for
appealing the judgment entered by the district
court. See Evans, infra at 545. In Dumont, 936
F.2d at 294, we held that a defendant could not
enjoy the benefits of tolling because he filed a
freestanding "motion to reconsider sentence"
rather than a motion which invoked Rule 35(c).
Although we commented that "motions seeking
relief that the district judge no longer is
authorized to provide . . . do not affect the
time for appeal," id., this statement must not be
read out of context. Given that a court cannot
know if it is empowered to grant relief until it
first reviews the substance of the pleading, we
did not mean to imply that a motion expressly
filed under Rule 35(c) will toll the appellate
filing deadline only if it is deemed meritorious
ex post. Any good faith motion expressly relying
on Rule 35(c) will suspend the time limits im-
posed by Federal Rule of Appellate Procedure
4(b). See United States v. Ibarra, 502 U.S. 1, 6-
7 (1991); United States v. Healy, 376 U.S. 75, 80
& n.4 (1964); United States v. Barragan-Mendoza,
174 F.3d 1024, 1026-27 (9th Cir. 1999).
