                            In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-2304

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellant,
                               v.

JERRY L. V INYARD ,
                                             Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
           No. 05-CR-40065-JPG—J. Phil Gilbert, Judge.
                        ____________

No. 07-2674

In the Matter of:

    T HE U NITED S TATES OF A MERICA,
                                                          Petitioner.
                        ____________
                 Petition for Writ of Mandamus to
                  the United States District Court
                for the Southern District of Illinois.
           No. 05-CR-40065-JPG—J. Phil Gilbert, Judge.
                        ____________

    A RGUED F EBRUARY 15, 2008—D ECIDED A UGUST 20, 2008
                        ____________
2                                      Nos. 07-2304, 07-2674

    Before F LAUM, W OOD , and E VANS, Circuit Judges.
  W OOD , Circuit Judge. Unsure of the proper procedural
vehicle to use, the Government has brought this case
before us using two alternatives: an interlocutory appeal
(No. 07-2304) and a petition for a writ of mandamus
(No. 07-2674). We conclude that appellate jurisdiction
under 18 U.S.C. § 3731 is problematic, since the district
court did not issue any of the orders described by that
statute. We conclude, however, that this is one of those
rare cases in which a writ of mandamus should issue. We
therefore reserve for another day the question whether
we might have been able to accept this type of case as
an ordinary interlocutory appeal.


                               I
  Jerry Vinyard entered an “open plea” to charges of
manufacturing, distributing, and possessing with intent
to distribute methamphetamine. See 18 U.S.C. §§ 841(a)(1)
and 846. He stipulated that he had a prior felony drug
conviction (from 1984) and also that the conspiracy this
time around involved more than 500 grams—a fact
that increased his mandatory minimum sentence to
240 months.
  At sentencing on May 3, 2007, no one had any objections
to the presentence report (PSR), which recommended a
guideline range of 235-293 months’ imprisonment, based
on a finding that Vinyard was involved with 36.5 kilo-
grams of methamphetamine and had possessed a firearm
during the offense. Before imposing the sentence, the
Nos. 07-2304, 07-2674                                    3

district court agreed to allow Vinyard’s wife to address
the court. She spoke for some time, emphasizing the
effect that a long sentence would have on their 11-year-old
daughter. After his wife spoke, Vinyard for the first time
questioned some of the facts in the PSR having to do with
amounts of anhydrous ammonia involved in the crime. The
district court asked him if he was objecting to the PSR.
Vinyard waffled, seeming to say yes, but noting that he
was not acting on the advice of counsel, who was con-
cerned about Vinyard’s jeopardizing his three-level
reduction for acceptance of responsibility and other
benefits he was expecting. After a brief recess, Vinyard
withdrew any objections, and the district court sentenced
him to the mandatory minimum of 240 months.
   At this point, the district court appears to have had
second thoughts. The next day, May 4, without giving
any notice to the Government, he ordered Vinyard’s
release. This caused problems because the order was not
filed until May 7; the Government learned of Vinyard’s
release only when an agent happened to see him walking
into the Probation Office. The Government immediately
filed a notice of appeal of the release order on May 7
(No. 07-2058), and on May 10 it filed a motion to reverse
and vacate the release order. That same day (May 10), this
court entered an order requiring Vinyard to be detained.
The district court responded hours later by sua sponte
vacating Vinyard’s plea and sentence, ordering new
appointed counsel, vacating its release order, and ordering
Vinyard to self-report the next day. This court issued
another order reiterating the immediate detention order.
The Government filed an appeal of the May 10 order
4                                     Nos. 07-2304, 07-2674

vacating the plea and sentence (No. 07-2304). The appeal
of the release order was dismissed on the ground that it
had become moot.
   Along with its appeal of the vacatur, the Government
filed a motion to stay the proceedings with both the dis-
trict court and the circuit on June 5. On June 13, one day
before the next scheduled status hearing, the district
court granted the motion to stay and amplified on its
reasons for vacating the plea and sentence. On July 17, the
Government filed a petition for a writ of mandamus to
compel the district court to reinstate the sentence it had
pronounced (No. 07-2674).
  On August 6, this court ordered briefing on the question
whether the direct appeal “should proceed only in the
related Petition for Mandamus relief” under United States
v. Spilotro, 884 F.2d 1003 (7th Cir. 1989). On November 5,
the direct appeal and the mandamus petition were consoli-
dated for oral argument and disposition.


                             II
  Mandamus is an extraordinary remedy, “issued only in
extraordinary cases.” In re Rhone-Poulenc Rorer, Inc., 51
F.3d 1293, 1294 (7th Cir. 1995). There are two conditions
for issuing a writ of mandamus:
    The first is that the challenged order not be effectively
    reviewable at the end of the case—in other words, that
    it inflict irreparable harm. . . . The petitioner must
    ordinarily demonstrate that something about the
    order, or its circumstances, would make an end-of-case
Nos. 07-2304, 07-2674                                      5

    appeal ineffectual or leave legitimate interests unduly
    at risk. . . . Second, the order must so far exceed the
    proper bounds of judicial discretion as to be legiti-
    mately considered usurpative in character, or in
    violation of a clear and indisputable legal right, or, at
    the very least, patently erroneous.
Id. at 1295 (quotations and citations omitted). In addition,
we normally will reject a petition for a writ of mandamus
if the requesting party has an adequate remedy at law.
We believe that all of these conditions are satisfied in this
case.


  A. Adequacy of Legal Remedy
  There is no need to issue a writ of mandamus if the
normal procedures for error correction would suffice.
Thus, if, as the Government argues in No. 07-2304, this
court has clear appellate jurisdiction over the district
court’s order of May 10, it would be inappropriate to resort
to mandamus. The statute governing appellate jurisdic-
tion in criminal cases is 18 U.S.C. § 3731. To support
jurisdiction in this appeal, the Government relies on
paragraph 1 of the statute, which says:
    In a criminal case an appeal by the United States shall
    lie to a court of appeals from a decision, judgment, or
    order of a district court dismissing an indictment or
    information or granting a new trial after verdict or
    judgment, as to any one or more counts, or any part
    thereof, except that no appeal shall lie where the
    double jeopardy clause of the United States Constitu-
    tion prohibits further prosecution.
6                                      Nos. 07-2304, 07-2674

The district court’s order of May 10 setting aside, on its
own motion, Vinyard’s plea and sentence, is (the Govern-
ment argues) the functional equivalent of an order “grant-
ing a new trial after verdict or judgment.” Therefore, it
concludes, appellate jurisdiction exists under § 3731.
  The Government is overlooking the critical qualification
to this power that appears at the end of the paragraph
quoted above: no appeal is permitted if there would be a
double jeopardy problem. Normally, if a district court
grants a new trial after verdict or judgment, it does so
upon the defendant’s motion under F ED. R. C RIM. P. 33.
Under those circumstances, there is no double jeopardy
problem if the Government appeals. If it succeeds, then
the original verdict or judgment is simply reinstated; if it
loses, then the defendant receives the new trial that he
or she requested. Here, however, Vinyard never made a
motion under Rule 33: the district court wiped the slate
clean on its own.
  Vinyard received due process and jeopardy attached in
his first proceeding once the court pronounced its
sentence—possibly even as early as when it accepted his
guilty plea. See Dawson v. United States, 77 F.3d 180, 182
(7th Cir. 1996). The district court effectively granted him
a new trial without waiting for Vinyard to request this
relief. While double jeopardy can be waived by the defen-
dant, see Ricketts v. Adamson, 483 U.S. 1, 11 (1987), a court
is on much shakier ground finding the protections lost
when the only action is by the prosecution or the court,
Ricketts, 483 U.S. at 23-26 (Brennan, J., dissenting). Justice
Brennan cited United States v. Dinitz, 424 U.S. 600, 609
Nos. 07-2304, 07-2674                                       7

(1976) (alteration in Ricketts), which says: “the important
consideration, for purposes of the Double Jeopardy
Clause, is that the defendant retain primary control over
the course to be followed in the event of [prejudicial
prosecutorial or judicial] error.” Indeed, in United States v.
Smith, 331 U.S. 469, 474-75 (1947), the Supreme Court
avoided the question whether a grant of a new trial solely
on the court’s own initiative would violate the defendant’s
rights under the Double Jeopardy Clause precisely be-
cause it raised such an important and difficult constitu-
tional question. Citing Smith, this court has echoed these
misgivings: “In the absence of a proper motion by the
defendant, a judge obviously cannot presume that a
defendant is waiving his double jeopardy rights and is
willing to be re-tried.” United States v. Scop, 942 F.2d 1004,
1008 (7th Cir. 1991). Vinyard would have a nonfrivolous
claim that a subsequent trial would subject him to
jeopardy and punishment a second time on the same
indictment, which would bar his reprosecution and leave
the Government no way to remedy the matter.
  If this case were otherwise unsuitable for mandamus
relief, we would have no choice but to decide once and for
all whether the district court’s actions had the effect of
putting Vinyard twice in jeopardy for his offense. The
district court, at a minimum, created a serious question
whether § 3731 supports jurisdiction over an appeal. This
is enough to support a finding that the remedy at law
may be inadequate. We therefore turn to the other
criteria that govern mandamus relief to see whether it is
proper here.
8                                      Nos. 07-2304, 07-2674

    B. Irreparable Harm
   If the district court’s May 4 release order and May 10
vacatur of Vinyard’s plea and sentence were allowed to
stand, irreparable harm of several kinds would arise.
Various potential dangers were demonstrated when the
United States learned of Vinyard’s release only when he
ambled into the Probation Office: his precipitous
release might have allowed him to inflict harm on others,
if he had been armed; he may have absconded; or he
might have slipped away and resumed his methamphet-
amine dealings.
  Even if the Government could somehow prevail against
a double jeopardy defense, there is a possibility that
Vinyard might be acquitted in a second round of pro-
ceedings if he insisted on a trial and put the Government
to its proof. Because of the constraints on Government
appeals of criminal convictions, see 18 U.S.C. § 3731, an
acquittal upon retrial would be a “harm” from the Govern-
ment’s perspective—a conviction it had on May 3 would
have evaporated as a result of the district court’s May 10
order. This is a harm for which there would be no remedy.
  These risks of irreparable harm satisfy the requirements
of In re Rhone-Poulenc. The first possibility demonstrates
that the orders “[left] legitimate interests unduly at risk,”
In re Rhone-Poulenc, 51 F.3d at 1295, namely the safety
of prosecutorial personnel and the public. The next two
possibilities show that “the challenged order [would] not
be effectively reviewable at the end of the case,” id., either
because a nonfrivolous double jeopardy challenge bars
the prosecution from the outset or an acquittal leaves
Nos. 07-2304, 07-2674                                       9

the prosecution with a loss from which it cannot appeal
at all.


  C. Judicial Usurpation, Violation of a Clear Right, or
     Patent Error
  The Government argues that the district court committed
two patent errors in this case: first, a violation of F ED. R.
C RIM. P. 35(a), which governs immediate corrections of
sentences; and second, a violation of FED. R. C RIM. P. 11(e),
which addresses the finality of a plea of guilty or nolo
contendere.


    1. Rule 35(a)
  The district court relied in part on Rule 35(a), which
reads as follows:
    Within 7 days after sentencing, the court may correct
    a sentence that resulted from arithmetical, technical,
    or other clear error.
The district court believed that there were two clear
errors requiring correction: it had failed to inquire suffi-
ciently into prior convictions and warn the defendant
about their impact (as required by 21 U.S.C. § 851(b)), and
it came to believe that the defendant may not have know-
ingly and voluntarily agreed to the relevant conduct in
the PSR. Neither of these points justifies use of Rule 35(a).
  When the Government files an information under § 851,
    the court shall after conviction but before pronounce-
    ment of sentence inquire of the [defendant] whether
10                                     Nos. 07-2304, 07-2674

     he affirms or denies that he has been previously
     convicted as alleged in the information, and shall
     inform him that any challenge to a prior conviction
     which is not made before sentence is imposed may not
     thereafter be raised to attack the sentence.
21 U.S.C. § 851(b). In any case, “[n]o person who stands
convicted of an offense under this section may challenge
the validity of any prior conviction alleged . . . which
occurred more than five years before the date of the
information . . . .” 21 U.S.C. § 851(e). Taken together,
§ 851(b) and (e) allow a prior conviction that might be
used to enhance a sentence to be challenged during the
sentencing phase; a challenge cannot be brought until
the guilt phase is complete, and no challenge is possible
if the conviction is over five years old. Vinyard’s prior
conviction was in 1984, and thus it is covered by § 851(e):
he was no longer entitled to attack its validity at the
time of his sentencing hearing.
  The court’s duty to inquire under § 851(b) arises only
after conviction or the acceptance of the guilty plea. A
failure to conduct that inquiry cannot retroactively draw
into question the antecedent guilty plea. At most, an
error here might call the sentence into question. Cf. F ED. R.
C RIM. P. 11(b) (listing the items about which a defendant
must be admonished before a guilty plea may be accepted,
but not mentioning § 851 or prior convictions used for
enhancement). The district court’s belief here that it had
not complied properly with § 851(b) cannot be grounds
for applying Rule 35(a) to the guilty plea. If a violation of
§ 851(b) caused the court to misstate the maximum
Nos. 07-2304, 07-2674                                       11

possible penalty, then there would be a violation of
Rule 11(b)(1)(H), which would be subject to correction
if the defendant wished to set aside his guilty plea and
if he could convince the district court to allow him to
withdraw the plea under Rule 11(d).
  The district court’s alleged § 851(b) error would not
warrant relief from the sentence, either. If any potential
collateral attack would be barred by § 851(e), the district
court is under no duty to inquire under § 851(b), United
States v. Arrango-Montoya, 61 F.3d 1331, 1339 (7th Cir. 1995)
(per curiam), even though it is probably good practice to
do so, id. Given that there is no duty, there is no error
justifying the radical action of setting aside the guilty
plea without any request from the defendant.
  We say “alleged” error because it is not at all clear on this
record that there was any error at all (or at least anything
that should not be characterized as harmless). Vinyard
unequivocally affirmed the fact of his earlier convictions
during the sentencing proceeding, saying: “I ended up
with the charge because I was guilty.” Although he
expressed reservations about the present charges, he
had no reservations about his prior criminal record.
  We also see no error in the district court’s decision to
adopt the findings in the PSR. Although it required a
brief recess so that he could consult with his lawyer,
Vinyard eventually expressly stated that he had no objec-
tion to the PSR. Any error relating to the quantity of drugs
would, on this record, have been harmless. The only
issue was whether the amount of methamphetamine
involved in the conspiracy was greater than 500 grams. If
12                                    Nos. 07-2304, 07-2674

so, the mandatory minimum sentence of 240 months
would be triggered. Vinyard had already stipulated to
at least this amount, and so even if there were some
problem with the PSR, there was sufficient evidence
from other sources that would have supported the same
mandatory minimum sentence—which is, after all, what
Vinyard received in the end.
  The district court committed no error that would justify
invocation of its powers under Rule 35(a) to correct a “clear
error,” much less an error that would justify setting aside
the guilty plea, which was entered before any of the
alleged errors took place. Rule 35(a) provides no support
for the court’s action.


     2. Rule 11(e)
  Rule 11(e) underscores the finality to which a plea of
guilty or nolo contendere is entitled. It states:
     After the court imposes sentence, the defendant may
     not withdraw a plea of guilty or nolo contendere, and
     the plea may be set aside only on direct appeal or
     collateral attack.
The district court thought that this provided alternative
support for its action. Once again, we find it to be mis-
taken.
  To begin with, Vinyard never tried to withdraw his
guilty plea; it was the court that pulled it away from him.
Once sentence has been pronounced, the Rule says that it
may be set aside only on direct appeal or collateral attack.
Nos. 07-2304, 07-2674                                     13

See United States v. Patterson, 381 F.3d 859, 865 (9th Cir.
2004) (“[A]lthough the district court is free to reject the
plea agreement after accepting a guilty plea, it is not free
to vacate the plea either on the government’s motion or
sua sponte. Instead, when the court accepts a guilty plea
but rejects the plea agreement, it becomes the defendant’s
choice whether to stand by the plea or to withdraw the
plea.”). Patterson illustrates that the methods followed
by the district court in this case effectively usurped a
choice that was the defendant’s to make: how to chal-
lenge potential problems with his sentence.
   The district court acted as if sentence was imposed, for
Rule 11 purposes, only when a written judgment was
filed, but that is incorrect. Oral pronouncement of the
sentence triggers the bar. See United States v. Ogden, 102
F.3d 887, 888-89 (7th Cir. 1996). The sentence was im-
posed on May 3, and the Rule 11 bar on setting aside
the plea had attached by the June 10 order. The district
court’s order thus violated FED. R. C RIM. P. 11(e).


                             III
  Although mandamus is an extraordinary writ, issuance
of the writ is warranted, among other reasons, in order “to
ensure the proper application of [the Federal Rules of
Criminal Procedure] . . . .” United States v. Igoe, 331 F.2d
766, 768 (7th Cir. 1964). Stepping beyond the limits of those
Rules—either by applying a power not granted or one
expressly excluded—supports use of the writ if irrep-
arable harm has been demonstrated.
14                                   Nos. 07-2304, 07-2674

  We are satisfied that the Government has adequately
shown the possibility of irreparable harm and that issu-
ance of the writ is appropriate under the circumstances
of this case. Our decision to issue the writ renders it
unnecessary for us to reach the Government’s appeal, and
so we have no need to resolve definitively the question
of appellate jurisdiction.
  The district court committed patent error in its applica-
tion of Rules 11(e) and 35(a), and the Government has
demonstrated irreparable harm arising from those errors.
We therefore G RANT the petition to issue a writ of manda-
mus and V ACATE the district court’s May 10 vacatur of the
plea and sentence. We further O RDER that judgment
be entered pursuant to the May 3, 2007 sentence pro-
nounced by the district court, and D ISMISS the Govern-
ment’s appeal as unnecessary.




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