                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Argued November 9, 2006
                             Decided December 7, 2006

                                      Before

                     Hon. DANIEL A. MANION, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

Nos. 05-2505 & 05-2706

UNITED STATES OF AMERICA,                    Appeals from the United States
              Plaintiff-Appellee,            District Court for the Northern
                                             District of Illinois, Eastern Division
      v.
                                             No. 03 CR 1201
KRISTOFF MERRIWEATHER and
KWAN MERRIWEATHER,                           James F. Holderman,
          Defendants-Appellants.             Chief Judge.

                                    ORDER

       Brothers Kristoff and Kwan Merriweather pled guilty to one count of robbery
and one count of attempted robbery of a mail carrier. See 18 U.S.C. § 2114. In
September 2004, after the Supreme Court granted certiorari in United States v.
Booker, 375 F.3d 508, 515 (7th Cir. 2004), the district court sentenced Kristoff to a
total of 51 months’ imprisonment and Kwan to a total of 77 months. The court also,
following a suggestion we offered in Booker, announced “fall-back” sentences of 18
months (for Kristoff) and 24 months (for Kwan). Neither defendant appealed, but
after the Supreme Court took its turn in Booker (see United States v. Booker, 543
U.S. 220 (2005)), both asked the district court to reduce his sentence to the
previously announced fall-back point. The district court declined, and these appeals
followed. Because United States v. Smith, 438 F.3d 796 (7th Cir. 2006)—decided
Nos. 05-2505 & 05-2706                                                        Page 2

after briefing was complete—controls the outcome of both appeals, we vacate the
district court’s order and remand with instructions to dismiss the Merriweathers’
motions for lack of subject-matter jurisdiction.

       Smith holds that defendants are out of luck if they did not file a notice of
appeal to preserve the possibility of a post-Booker remand to implement a fall-back
sentence. The government contends that Smith is procedurally indistinguishable
from the Merriweather appeals. Kristoff admits that his case is virtually
indistinguishable from Smith. Kwan, however, insists that Smith is
distinguishable because the government waived reliance on Smith by not arguing in
the district court that there was no continuing jurisdiction to implement the fall-
back sentences. Accordingly, Kwan maintains that the district court improperly
modified the original judgment by refusing to implement his fall-back sentence.

       Despite Kwan’s claim to the contrary, Smith is controlling, and Kwan’s
waiver argument is frivolous. The point of Smith is that Kwan’s post-Booker motion
could not give the sentencing court subject-matter jurisdiction to implement the
fall-back sentence, and of course the absence of subject-matter jurisdiction is not a
defect that can be waived. See Smith, 438 F.3d at 799 (explaining that jurisdiction
“is the sort of limit that must be respected, and which we must enforce even if
everyone else has ignored it”). Indeed, the point of Smith is that the district court
did not even have jurisdiction to consider implementing the fall-back sentences.

       The Merriweathers also argue that as a matter of fairness they deserve the
lower sentences because both decided not to appeal in reliance on the fall-back
sentences. Kwan in particular contends that his dispute over his criminal history
calculation would normally be appealed but that he refrained from doing so because
the fall-back sentence was in place. But a defendant could file an appeal even if his
sentence was otherwise correct under the guidelines—many did so—and we would
have stayed the appeal pending the Supreme Court’s resolution of Booker. See
Smith, 438 F.3d at 798. However, the time to appeal the original sentences has
long since passed. Even though Smith left open the possibility that an untimely
appeal from a sentence might be maintained with the consent, or after the
oversight, of the government, that does not save the Merriweathers. See id. at 801.
Both brothers request review of the district court’s refusal to impose the fall-back
sentences and do not characterize their appeals from that decision as belated
appeals from their original sentences. Indeed, Kristoff relies on the date of the
district court’s hearing regarding the fall-back sentences to state that his appeal
now is timely. And the government has asserted that it would not consent to such
belated appeals from the original sentences.

      There remains one loose end concerning Smith. As additional authority
Kristoff and Kwan have submitted United States v. Cage, 451 F.3d 585, 590 (10th
Nos. 05-2505 & 05-2706                                                         Page 3
Cir. 2006), another opinion released after briefing was complete. That case holds,
under circumstances similar to those in Smith and in these appeals, that the
district court did have jurisdiction to implement its fall-back sentence. The Tenth
Circuit, however, does not identify any source of jurisdiction for the sentencing
court to implement a fall-back sentence, nor does it address our Smith decision,
which was more than three months old when Cage was decided. See also United
States v. Booker, 436 F.3d 238, 246-47 (D.C. Cir. 2006) (holding that guidelines
sentence, and not alternative sentence, was only lawful judgment of district court
but vacating because government conceded prejudicial error to defendant). Neither
brother suggests any reason why Cage should cause us to reevaluate Smith, and we
see no compelling reason to do so. The premise of Smith—that a district court’s
jurisdiction to alter a final sentence is quite limited—is well-established in this
circuit. See United States v. Rosby, 454 F.3d 670, 675 (7th Cir. 2006); United States
v. Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004); Romandine v. United States, 206
F.3d 731, 737 (7th Cir. 2000).

      The district court’s order of May 17, 2005 is vacated, and the case is
remanded with instructions to dismiss the Merriweathers’ motions for lack of
subject-matter jurisdiction.
