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

No. 05-4040
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellant,
                              v.

RAMON M. REYES-SANCHEZ,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
           No. 04-CR-45—J.P. Stadtmueller, Judge.
                        ____________
              On Motion to Recall the Mandate
                       ____________
                DECIDED DECEMBER 6, 2007
                      ____________


 Before EASTERBROOK, Chief Judge, and CUDAHY and
MANION, Circuit Judges.
  EASTERBROOK, Chief Judge. Ramon Reyes-Sanchez,
an alien who reentered the United States without permis-
sion after his removal, pleaded guilty to violating 8 U.S.C.
§1326. He was sentenced to 33 months’ imprisonment,
substantially below the Guideline range of 57 to 61
months, because the district judge thought that aliens
throughout the nation should receive steep discounts
for pleading guilty to immigration offenses, whether or
not the Attorney General has established a “fast track”
2                                              No. 05-4040

program in a given district. While the prosecutor’s ap-
peal was pending, we held in United States v. Galicia-
Cardenas, 443 F.3d 553 (7th Cir. 2006), and United States
v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006), that
the judge was mistaken. On August 15, 2006, we vacated
Reyes-Sanchez’s sentence and remanded for resentencing
consistent with Galicia-Cardenas and Martinez-Martinez.
  Our mandate issued on September 6, 2006. The prosecu-
tor did not ask the district judge to resentence Reyes-
Sanchez, and the judge did not take any step on his own to
implement the mandate. Apparently the prosecutor’s
office neglected to tell the Bureau of Prisons and the
Department of Homeland Security about this court’s
decision, because on December 8, 2006, Reyes-Sanchez was
released from prison when his 33-month sentence (less
good-time credits) expired. In February 2007 he was
removed to the Dominican Republic, of which he is a
citizen. Some time in May 2007, more than eight months
after our mandate had issued—a period during which the
prosecutor and district judge neglected to implement our
mandate—the United States Attorney’s Office finally
realized that Reyes-Sanchez was no longer in prison, or
for that matter in the United States. It would have
been simple for the prosecutor to determine when his
sentence expired and to ensure that Reyes-Sanchez was
resentenced before his release, but no one bothered to do
that.
  After allowing a further six months to pass, the United
States Attorney’s Office has asked us to proceed as if it
had never appealed in the first place. It wants us to recall
the mandate (issued more than 14 months ago) and
reinstate the 33-month sentence that we have already
held is erroneous. The reason for this proposed step is
that the case otherwise will loiter on the district court’s
docket until Reyes-Sanchez again illegally reenters the
United States, is caught, and is compelled to resume
serving time in this case.
No. 05-4040                                              3

  It is not clear to us why leaving this case open on the
district court’s docket is a bad thing. The prosecutor
and district judge have themselves to blame for any
untidiness. The district judge should have implemented
our mandate without the need for prodding by the
prosecutor—though the prosecutor could and should have
reminded the judge about the need to act before Reyes-
Sanchez was released. Meanwhile the United States
Attorney should have notified the Bureau of Prisons
and the immigration officials about the impending
resentencing. Both the United States Attorney’s Office
and the Bureau of Prisons are components of the Depart-
ment of Justice, not hostile sovereigns that keep secrets
from each other. (The motion’s assertion that “[t]he United
States did not learn of the defendant’s release and de-
portation until May of 2007” is hard to fathom: the
Bureau of Prisons and the Department of Homeland
Security are part of “the United States”.)
  Although a court of appeals has the authority to recall
its mandate, the power should be used only in extraordi-
nary circumstances when inaction would lead to an
injustice. Calderon v. Thompson, 523 U.S. 538, 549–53
(1998). The Court held in Calderon that the negligence of
two appellate judges in handling a capital appeal was not
a sufficient justification for the recall of an appellate
mandate. If judicial negligence does not justify recalling
a mandate, how could the prosecutor’s negligence do so?
For that is the only reason the United States gives—that
the prosecutor’s office was napping when action was
required. And it is likewise difficult to see how the book-
keeping issues that occupy the prosecutor’s thoughts
amount to an injustice. Many a case remains unresolved
for years. Take, for example, the situation when a defen-
dant is a fugitive. That’s functionally Reyes-Sanchez’s
situation. Instead of alerting the prosecutor and the
district court to a mistaken failure to impose a new
4                                              No. 05-4040

sentence, Reyes-Sanchez got on a plane and left the
United States. The prospect of a lawful, though higher,
sentence should he return is his due.
  The United States may seek his extradition from the
Dominican Republic, or it may offer to permit his entry
under the immigration laws (the technical phrase is
“parole into the United States”) so that he could be
resentenced. If Reyes-Sanchez declines that opportunity,
then his absence will be a voluntary act and he could
be resentenced in absentia under Fed. R. Crim. P.
43(c)(1)(B). See United States v. Achbani, No. 06-4190 (7th
Cir. Nov. 8, 2007).
  According to the prosecutor, United States v. Londono,
100 F.3d 236 (2d Cir. 1996), supports the conclusion
that an appellate mandate should be recalled if the
defendant is removed from the United States before being
resentenced. Londono was decided before the Supreme
Court stated in Calderon that recalling an appellate
mandate requires compelling circumstances. What is
more, Londono does not say that a mandate may be re-
called to avoid inconvenient bookkeeping. The defendant
in Londono had been removed from the United States
before the court of appeals rendered its decision, and the
court stated that a recall of mandate was appropriate
to consider “the issue of potential mootness, a jurisdic-
tional question that should have been timely presented
by disclosure” of the alien’s absence from the United
States. 100 F.3d at 237. There was no jurisdictional
problem when our decision was made and none when the
mandate issued.
  If the United States Attorney thinks that a case linger-
ing on the district court’s docket is an intolerable blot on
a federal record-keeping system, he is free to dismiss the
indictment or recommend that the President commute
Reyes-Sanchez’s sentence to time served. As things are,
No. 05-4040                                            5

however, the Judicial Branch should stand ready to im-
pose a lawful sentence as soon as the defendant is avail-
able for sentencing, or is deemed voluntarily absent for
the purpose of Rule 43(c)(1)(B).
 The motion to recall the mandate is denied.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—12-6-07
