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

Nos. 08-1856, 08-1857, 08-1858, and 08-1862
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                v.

FRANCIS LAWRENCE, ANTHONY O. JACKSON,
DAVID L. ANDERSON, AND LEON R. JOHNSON,
                                          Defendants-Appellants.
                         ____________
            Appeals from the United States District Court
      for the Northern District of Indiana, Hammond Division.
                 Nos. 98 CR 47, 00 CR 93, 02 CR 103,
               and 98 CR 145—Rudy Lozano, Judge.
                         ____________
        ARGUED JUNE 3, 2008—DECIDED JULY 25, 2008
                         ____________


  Before KANNE, SYKES, and TINDER, Circuit Judges.
  TINDER, Circuit Judge. This case involves the consolidated
appeals of Francis Lawrence, Anthony Jackson, David
Anderson, and Leon Johnson, who filed motions with
the district court to reduce their sentences under the
retroactive sentencing guideline reductions for crack
cocaine offenses. The court granted the defendants’
motions and reduced their sentences according to the
guidelines, but the court also, apparently inadvertently,
2               Nos. 08-1856, 08-1857, 08-1858, and 08-1862

included language in the orders that converted each
sentence into “time served.” Within a few weeks, the
court recognized the error and entered modifications to
correct the language. Accordingly, the defendants are
challenging the district court’s authority to substan-
tively modify their sentences outside of the seven-day
window permitted by Federal Rule of Criminal Procedure
35.


                      I. Background
  In order to decrease the disparity between sentences
for crack cocaine offenses and powder cocaine offenses,
the United States Sentencing Commission reduced the
penalties for crack cocaine offenses by amending the
sentencing guidelines in 2007. The Commission also
voted to make the changes to the guidelines retroactive,
effective March 3, 2008. The amendment to the guide-
lines generally results in a base offense level of two levels
less than the original offense level. See U.S.S.G. app. C,
amend. 706.
  A district court has the authority under 18 U.S.C.
§ 3582(c)(2) to modify a defendant’s sentence where the
sentence included a term of imprisonment based on a
sentencing range that was subsequently lowered by the
Commission. Lawrence, Jackson, Anderson, and Johnson
were sentenced for crack cocaine offenses prior to the
amendment of the guidelines. Each defendant filed a
motion for a reduction under § 3582(c)(2). Lawrence
had originally been sentenced to 188 months’ imprison-
ment, and his motion asked the court to reduce his sen-
tence to 151 months. Jackson had originally been sen-
tenced to 151 months’ imprisonment, and his motion
Nos. 08-1856, 08-1857, 08-1858, and 08-1862              3

asked the court to reduce his sentence to 121 months.
Anderson had originally been sentenced to 97 months’
imprisonment, and his motion asked the court to reduce
his sentence to 78 months. Johnson had originally been
sentenced to 151 months’ imprisonment, and his motion
asked the court to reduce his sentence to 61 months. The
government filed a response to each motion and agreed
that the calculations proposed by Lawrence, Jackson, and
Anderson were appropriate. The government disagreed
with Johnson’s calculation and proposed that 120 months
should be required because Johnson was subject to a
mandatory minimum sentence of 10 years; Johnson filed
a response and agreed that the government’s calcula-
tion was proper.
  The district court granted Johnson’s motion in an order
on March 4, 2008. The court granted Lawrence’s and
Anderson’s motions in orders on March 6, 2008. The
court granted Jackson’s motion in an order on March 13,
2008. Each order reduced the sentence to the number of
months agreed upon by the parties and contained an
effective date of ten days after the order date. Each order
also included the following language: “If this sentence
exceeds the amount of time the defendant has already
served, the sentence is reduced to a ‘Time Served’ sen-
tence” (emphasis added). On March 26, 2008, the district
court entered an order in each defendant’s case stating
that the previous order contained a clerical error that
was being corrected. It then entered an order for each
defendant amending the prior order: “If this sentence is
less than the amount of time the defendant has already
served, the sentence is reduced to a ‘Time Served’ sen-
tence” (emphasis added).
4               Nos. 08-1856, 08-1857, 08-1858, and 08-1862

                    II. Rules 35 and 36
  We review a challenge to the district court’s authority
to modify a sentence de novo. United States v. Daddino,
5 F.3d 262, 264 (7th Cir. 1993). A district court may cor-
rect within seven days the imposition of a sentence that
contained an “arithmetical, technical, or other clear
error.” Fed. R. Crim. P. 35(a); see also United States v.
McHugh, 528 F.3d 538, 540 (7th Cir. 2008); Daddino, 5
F.3d at 265. It is clear that the court’s inclusion of the
language converting the sentences to “time served” was
inadvertent.1 The government concedes that the correc-
tions were made more than seven days after the orders
were entered. We consider, however, whether the court’s
use of an “effective date” ten days after the order was
entered extended the amount of time the court had to
correct the error; if so, the correction of Jackson’s sen-
tence was timely. (The modifications of the other defen-
dants’ sentences would be untimely as of either date.)
  Rule 35(a) applies within seven days “after sentencing.”
The rule defines “sentencing” as the “oral announcement
of the sentence.” Fed. R. Crim. P. 35(c). The definition
was added to Rule 35 in 2004 to resolve a circuit split as
to whether the imposition of a sentence occurred at the
oral sentencing or upon the entering of the written judg-
ment by the court. See Fed. R. Crim. P. 35(c) advisory


1
  The district court’s use of the language at issue may have
resulted from a recommendation by the Bureau of Prisons that
used the same language and was transmitted to the judiciary
for use in retroactive crack sentencing cases by the Judicial
Conference’s Committee on Criminal Law. The mistake
was discovered and corrected in a letter transmitted to the
judiciary by the Committee on March 13.
Nos. 08-1856, 08-1857, 08-1858, and 08-1862                 5

committee’s note (explaining the need for a definition of
“sentencing”); United States v. Wisch, 275 F.3d 620, 626 (7th
Cir. 2001) (describing circuit split). Here, the court did
not hold hearings or make oral announcements when
granting the defendants’ motions to reduce their sentences.
We conclude that the sentences were imposed and the
seven-day periods began when the written orders were
entered, and so the modifications by the court were
untimely for all four defendants under Rule 35(a).
  Rule 36 provides an exception that allows a court to
correct a “clerical error” in an order at any time, see
McHugh, 528 F.3d at 540; Daddino, 5 F.3d at 264, and the
court here characterized the language in its order as
containing such an error. Rule 36 is limited, however, to
errors that are truly clerical in nature; it cannot be used to
fix “judicial gaffes.” See McHugh, 528 F.3d at 540.
  We have previously considered the scope of Rule 36 on
several occasions. In Daddino, the district court’s written
sentencing order omitted payment of costs of incarcera-
tion and supervision, but the court amended the written
order to include those costs two months later. We held
that the omission of those costs stemmed from an over-
sight of the court itself and, therefore, the correction
was not permitted by Rule 36. Daddino, 5 F.3d at 265. In
United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006),
the court revoked the defendant’s two concurrent terms
of supervised release and ordered imprisonment fol-
lowed by additional supervised release. The court re-
ferred to the additional supervised release as “a term” and
did not specify orally or in writing that the supervised
release was for two concurrent terms. The court later
revoked the defendant’s second supervised release and
ordered the defendant to be imprisoned for two con-
6              Nos. 08-1856, 08-1857, 08-1858, and 08-1862

secutive terms. We noted that Rule 36 could not be used to
correct the prior erroneous imposition of a single term of
supervised release, and we held, therefore, that the court
lacked the authority to re-sentence the defendant to two
consecutive terms of imprisonment. Id. at 934-35. In
McHugh, the court orally sentenced the defendant and
recommended to the Bureau of Prisons that the defendant
be afforded the opportunity to participate in substance
abuse education and treatment programs. The written
order included the oral recommendation but limited
the recommendation to programs “which do not include
an early release.” While the recommendation was being
appealed, a different judge at the district court modified
the order to remove the additional words upon the pro se
motion of the defendant. We held that the district court
lacked the authority to make the change for several rea-
sons, including that Rule 36 was inapplicable where
nothing in the record indicated that the additional limita-
tion in the written order had been added without the
original judge’s knowledge or approval. McHugh, 528
F.3d at 540. Other circuits have reached similar conclu-
sions. See, e.g., United States v. Penson, 526 F.3d 331, 335
(6th Cir. 2008) (rejecting use of Rule 36 where the court
inadvertently orally sentenced the defendant to three
concurrent terms of 310 months and later corrected it in
a written order to two concurrent terms of 240 months
and one consecutive term of 70 months); United States v.
Guevremont, 829 F.2d 423, 426 (3d Cir. 1987) (rejecting
use of Rule 36 where the court failed to announce that
the defendant was placed on probation but later cor-
rected it in a written order).
  Here, the district court modified the sentence by sub-
stituting the words “is less than” for the word “exceeds.”
Nos. 08-1856, 08-1857, 08-1858, and 08-1862                  7

The corrected sentence reflected the parties’ and the
court’s intent. However, “[a] district judge may . . . correct
a final judgment in a criminal case to reflect the sen-
tence he actually imposed but he cannot change the
sentence he did impose even if the sentence was errone-
ous.” Eskridge, 445 F.3d at 934. Unlike in Daddino, Eskridge,
and McHugh, we do not have an oral pronouncement of
the sentence to consider, and so the sentences “actually
imposed” were the written orders that converted the
sentences to time served. The error cannot be deemed a
clerical error under Rule 36, and the March 26, 2008,
orders modifying each defendant’s sentence and the
explanatory orders must be vacated.


              II. Subject-Matter Jurisdiction
  We now turn to the reduced sentences ordered on March
4, 6, and 13, which will again be in effect when the
March 26 orders are vacated. The defendants argue that
those orders are not properly before us because the gov-
ernment did not appeal from the orders and has waived
any challenge to them. The government contends the
orders are properly before us because the district court
lacked jurisdiction to sentence the defendants to time
served in those orders.
  We consider whether the court had subject-matter
jurisdiction to enter the orders; the district court’s subject-
matter jurisdiction is always properly before us and
cannot be waived by a party. United States v. Smith, 438
F.3d 796, 799 (7th Cir. 2006); Luna v. United States, 454
F.3d 631, 635 (7th Cir. 2006). Subject-matter jurisdiction is
“the courts’ statutory or constitutional power to adjudicate
the case.” Steel Co. v. Citizens for Better Env’t, 523 U.S. 83,
8                  Nos. 08-1856, 08-1857, 08-1858, and 08-1862

89 (1998); United States v. Cotton, 535 U.S. 625, 630 (2002).
It “delineat[es] the classes of cases . . . falling within a
court’s adjudicatory authority.” Eberhart v. United States,
546 U.S. 12, 16 (2005) (citing Kontrick v. Ryan, 540 U.S. 443,
455 (2004)).
  Generally, district courts lack subject-matter jurisdic-
tion to revisit sentences already imposed upon defendants.
United States v. Goode, 342 F.3d 741, 743 (7th Cir. 2003).
Congress has authorized courts to revisit sentences,
however, in three situations specified by § 3582(c). The
district court can modify a sentence where: (1) the
Bureau of Prisons has filed a motion and either extraordi-
nary and compelling reasons warrant a reduction or the
defendant is at least 70 years old and meets certain
other requirements; (2) where another statute or Fed-
eral Rule of Criminal Procedure 35 expressly permits a
sentence modification; or (3) where a defendant has
been sentenced to a term of imprisonment based on a
sentencing range that was subsequently lowered by
the Commission. We have previously recognized that
§ 3582(c) is indeed a jurisdictional grant. See Smith, 438
F.3d at 799 (“Because § 3582(c) limits the substantive
authority of the district court, it is a real ‘jurisdic-
tional’ rule . . . .”). Under 18 U.S.C. § 3582(c)(2),2 the


2
    18 U.S.C. § 3582(c)(2) provides:
      The court may not modify a term of imprisonment once
      it has been imposed except that . . . in the case of a
      defendant who has been sentenced to a term of impris-
      onment based on a sentencing range that has subse-
      quently been lowered by the Sentencing Commission
      pursuant to 28 U.S.C. § 994(o), upon motion of the
                                                   (continued...)
Nos. 08-1856, 08-1857, 08-1858, and 08-1862                       9

relevant subsection for sentence reductions due to a
guideline change, the court can exercise its jurisdiction
over this “class of cases” upon motion of a defendant, the
Bureau of Prisons, or the court sua sponte. Section 3582(c)(2)
also sets forth limitations on the court’s authority to reduce
the sentence, by requiring that the court consider the
§ 3553(a) factors in determining whether to reduce the
sentence and by requiring that the reduction be consistent
with the applicable policy statements issued by the Com-
mission. We will assume, without deciding, that the
court’s action of sentencing the defendants to time served
was inconsistent with the applicable policy statements,
in order to consider whether that action would deprive
the court of subject-matter jurisdiction.
  In United States v. Ceballos, 302 F.3d 679 (7th Cir. 2002),
we considered whether 21 U.S.C. § 851(a) was jurisdic-
tional in nature.3 We concluded that the district court’s
subject-matter jurisdiction was provided by 21 U.S.C.
§ 3231, which creates a court’s jurisdiction over offenses


2
    (...continued)
       defendant or the Director of the Bureau of Prisons, or
       on its own motion, the court may reduce the term of
       imprisonment, after considering the factors set forth in
       section 3553(a) to the extent that they are applicable,
       if such a reduction is consistent with applicable policy
       statements issued by the Sentencing Commission.
28 U.S.C. § 994(o) gives the Commission the authority to peri-
odically review and revise the guidelines.
3
  Section 851(a) prohibits a court from imposing an increased
sentence based upon a defendant’s prior conviction unless the
United States Attorney files an information with the court
prior to trial.
10              Nos. 08-1856, 08-1857, 08-1858, and 08-1862

against the laws of the United States. Id. at 691. Section
851(a), we determined, only created a procedure that
affected a court’s power to impose specified penalties.
Id. at 692. We noted that “[o]nce subject-matter jurisdic-
tion has properly attached, courts may exceed their au-
thority or otherwise err without loss of jurisdiction.” Id. at
691 (citing United States v. Prou, 199 F.3d 37, 45 (1st Cir.
1999)); see also Cotton, 535 U.S. at 630-31 (holding that
defects in an indictment do not affect the subject-matter
jurisdiction of the court to determine the case presented
in the indictment); Steel Co., 523 U.S. at 90 (finding that a
statute giving the district court “jurisdiction” over a
cause of action to impose civil penalties did not make all
of the elements of that cause of action jurisdictional;
rather, it specified the remedial powers of the court).
  In contrast to the above-cited cases, here the district
court’s jurisdiction as well as its authority to impose
specified penalties stemmed from the same source,
§ 3582(c)(2). That the subject-matter jurisdiction and
the limitations on its authority are contained within the
same section (indeed, the same sentence) does not
change our analysis. Section 3582(c)(2) creates a class of
cases that the district court is empowered to act upon—
cases where a defendant has been sentenced to a term
of imprisonment and the guideline range has subse-
quently been lowered by the Commission. Subject-matter
jurisdiction is proper when a case falls within that class.
  Section 3582(c)(2) also limits the court’s authority to
reduce a sentence by requiring that it consider § 3553(a)
and reduce a sentence only if it is consistent with the
applicable policy statements. If a court has re-sentenced
a defendant outside of these boundaries, it has erred.
Such an error, however, is not a jurisdictional one:
Nos. 08-1856, 08-1857, 08-1858, and 08-1862                  11

“[s]ubject-matter jurisdiction is absent when a federal
court may not issue a binding decree on a subject.”
United States v. Wey, 895 F.2d 429, 431 (7th Cir. 1990). Here,
the court had the ability to issue a binding decree on the
defendants; it just (arguably) erred in applying the
proper remedy.4 “[T]he fact that the judgment actually
entered embodied a sentence that [differed from] the
level authorized by Congress did not divest the court of
jurisdiction over the subject matter.” Prou, 199 F.3d at 46
(referring to § 851(a)).
  Because the district court had the power to adjudicate the
class of case at issue here, the court did not lack subject-
matter jurisdiction. The order sentencing the defendants
to time served is, therefore, not properly before us be-
cause it was not appealed.
  The question remains, however, whether the govern-
ment has waived the issue. In Greenlaw v. United States,
128 S.Ct. 2559 (2008), a defendant appealed the length of
his sentence and the government failed to file a cross-
appeal. Finding plain error, the Eighth Circuit sua sponte
increased the defendant’s sentence by 15 years to comply
with a statutory minimum that the district court had


4
  In United States v. Taylor, 520 F.3d 746, 748 (7th Cir. 2008),
we noted that the post-Booker advisory nature of the guidelines
might allow for argument that the defendant could be re-
sentenced below the new guidelines range and remain “consis-
tent” with the applicable policy statements as required by
§ 3582(c)(2); however, the issue was not argued in Taylor, so
we “[took] no position on it.” Id. Our conclusion in this case
that the district court had subject-matter jurisdiction regard-
less of any potential error in reducing the defendants’ sen-
tences precludes us from answering this question again today.
12              Nos. 08-1856, 08-1857, 08-1858, and 08-1862

overlooked. The Supreme Court clarified that under
the cross-appeal rule, it is impermissible for an appellate
court to alter a judgment to benefit a nonappealing
party. Id. at 2564. The Supreme Court noted that Congress,
through its specification of the instances in which the
government could seek review of a sentence, had given
the government “the prerogative to seek or forgo ap-
pellate correction of sentencing errors,” and “[t]hat mea-
sure should garner the Judiciary’s full respect.” Id. at 2565-
66. The Court also discussed that the interests of the
parties and the legal system in fair notice and finality
would be undermined by a modification of a judgment
that had not been appealed. Id. at 2569.
  Congress has given the government the authority to
appeal a sentence if the sentence was imposed in viola-
tion of law, was imposed as a result of an incorrect applica-
tion of the sentencing guidelines, is less than the guidelines
minimum sentence, or was imposed for an offense for
which there is no sentencing guideline and the sentence
is plainly unreasonable. 18 U.S.C. § 3742(b). The govern-
ment has 30 days after the entry of the order being ap-
pealed to file a notice of appeal with the district court.
Fed. R. App. P. 4(b)(1)(B). Here, the government’s time
to file a notice of appeal had not yet expired, when, on
March 26, the district court sua sponte entered new orders.
At that point, the government had no reason to appeal the
original orders because the orders had been superseded
by sentences that presumably no longer fit within the
appealable conditions specified by § 3742(b). It appears
that here, unlike in Greenlaw, the government had not
yet exercised its prerogative to forgo appeals because the
time periods had not expired when the court purported
to correct the sentences. Now that the sentences of
Nos. 08-1856, 08-1857, 08-1858, and 08-1862             13

March 4, 6, and 13 are at issue again, it would not seem
to run afoul of the cross-appeal rule or undermine the
interests of fair notice and finality to permit the govern-
ment to file notices of appeal within the remainders of
the 30-day time periods that had not expired as of
March 26. If the government chooses to appeal, the dis-
trict court should consider whether the defendants
should be detained pending the appeals pursuant to
18 U.S.C. § 3143(c). Any such appeals should be returned
to this panel as successive appeals under Operating
Procedure 6(b).


                  III. CONCLUSION
  The district court lacked the authority to correct the
sentences on March 26, 2008, and we VACATE those
orders and the explanatory orders of the same date. The
prior sentence orders of March 4, 6, and 13 are again
in effect.




                   USCA-02-C-0072—7-25-08
