     Case: 17-50709      Document: 00514736577         Page: 1    Date Filed: 11/27/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                  ___________________
                                                                      United States Court of Appeals

                                     No. 17-50709
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                   November 27, 2018
                                  ___________________
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


              Plaintiff-Appellee,

v.

PETE LUCERO,

              Defendant-Appellant.

                               _______________________

                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:17-CR-30-2
                             _______________________

Before OWEN, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

       The United States and Pete Lucero ask us to dismiss this appeal because
they believe it is moot. It is not. The district court lacked jurisdiction to enter
the order that purportedly moots the dispute.               Nevertheless, because the
district court’s original judgment remains in effect and omits limitations on a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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condition of supervised release that were announced orally at sentencing, we
vacate the August 25, 2017, judgment and remand to allow the district court
to implement its indicative ruling.
                                                    I.
         Pete Lucero pleaded guilty to conspiring to possess methamphetamine,
heroin, and cocaine with intent to distribute the drugs. 21 U.S.C. § 841(a)(1),
(b)(1)(A); id. § 846. At sentencing, the district court sentenced Lucero to 210
months in prison followed by 60 months of supervised release. It also imposed
special conditions on his supervised release, including a requirement that
Lucero submit to searches by a probation officer. The court authorized such
searches “only when reasonable suspicion exists that the defendant has
violated a condition of supervision and that the area to be searched contains
evidence of this violation.” ROA.104. On August 25, 2017, the district court
entered its judgment. But it failed to include the limiting language about
probation officer searches.
         Lucero appealed, raising challenges to his sentence. 1 On September 27,
2018—more than a year after Lucero filed a notice of appeal—the Government
moved to amend the judgment to correct the variation between the district
court’s written judgment and its oral pronouncement at sentencing. United
States v. Lucero, No. 7:17-cr-00030-DC-2, ECF No. 179, at 1–2 (W.D. Tex.).
And the district court agreed. The very next day it added a sentence to the
judgment purporting to clarify that a probation officer may search Lucero only




    1 The district court sentenced Lucero on August 17, 2017. That same day, Lucero’s trial counsel
filed a notice of appeal and a motion to withdraw as counsel. Eight days later, on August 25, 2017,
the district court entered its final judgment. By rule, Lucero’s notice of appeal became effective on the
date of the final judgment (August 25, 2017), notwithstanding that it was filed eight days earlier. See
FED. R. APP. P. 4(b)(2) (“A notice of appeal filed . . . before the entry of the judgment or order . . . is
treated as filed on the date of and after the entry.”).
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if he has reasonable suspicion. Everyone seemingly got what they wanted,
which is why the parties think the appeal is moot.
      But it’s not—because the district court lacked jurisdiction to amend
Lucero’s judgment. The general rule is that a case can exist only in one court
at a time, and a notice of appeal permanently transfers the case to us until we
send it back: “The filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam); see also Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373,
378–79 (1985). Lucero’s notice of appeal became effective on August 25, 2017,
which triggered our jurisdiction and eliminated the district court’s jurisdiction
to act under Criminal Rule 36. A year later, the Government asked the district
court to fix Lucero’s judgment. Alas, the district court had no power to do so.
See 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 3949.1 (4th ed. 2018) (“[A]ctions taken by the district court in violation of this
principle are null and void.”).
                                        II.
      True, there are exceptions to the general one-court-at-a-time rule. For
example, in a subsection titled “Jurisdiction,” Appellate Rule 4(b)(5) carves out
a single exception for Criminal Rule 35(a):          “The filing of a notice of
appeal . . . does not divest a district court of jurisdiction to correct a sentence
under Federal Rule of Criminal Procedure 35(a).” FED. R. APP. P. 4(b)(5).
Similarly, Appellate Rule 4(b)(3) creates an exception for motions under
Criminal Rules 29, 33, and 34.        FED. R. APP. P. 4(b)(3)(A)–(B); Stone v.
Immigration & Naturalization Serv., 514 U.S. 386, 401–03 (1995).



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      Neither one mentions Criminal Rule 36. The implication of that silence
is deafening. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS § 10 (2012) (discussing expressio unius
canon).   Supreme Court precedent, moreover, confirms what implication
suggests: Motions that are not enumerated in Appellate Rule 4 “do not affect
the finality of a district court’s judgment, either when filed before the appeal
(no tolling), or afterwards (appellate court jurisdiction not divested).” Stone,
514 U.S. at 403.
      What happened here? The Government moved to amend the judgement
under Criminal Rule 36—not Criminal Rules 29, 33, 34, or 35(a). Compare
FED. R. CRIM. P. 35(a) (“Correcting Clear Error”), with FED. R. CRIM. P. 36
(“Clerical Error”). Other exceptions—like district court jurisdiction to issue
orders in aid of appellate jurisdiction—likewise do not apply. See 16A CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3949.1 (4th ed.
2018) (collecting exceptions).
      Arguably one circuit has held that Criminal Rule 36 itself carves out
another exception to the general one-court-at-a-time rule. United States v.
McGee, 981 F.2d 271, 273 (7th Cir. 1992); but see United States v. McHugh, 528
F.3d 538, 540 (7th Cir. 2008) (Easterbrook, C.J.) (“[N]either McGee nor any
other opinion that we have been able to find allows a district court to use Rule
36 to change the precise feature of a disposition that is under appellate
review.”). And we have endorsed that view in dicta in an unpublished opinion.
See United States v. Podio, 672 F. App’x 487, 488 (5th Cir. 2017) (per curiam)
(stating in dicta that “Rule 36 is an exception to the general rule of divesting
district court jurisdiction on appeal”).    We have not, however, squarely
addressed the question in a holding.



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         Today we do. And we make clear the general one-court-at-a-time rule
applies to Criminal Rule 36: In a criminal case, an effective notice of appeal
divests the district court of jurisdiction, and a district court cannot use a Rule
36 motion to reacquire it and entertain a later-filed motion to correct a clerical
error.
         The fact that Criminal Rule 36 permits the district court to correct a
clerical error “at any time” does not change things. See McGee, 981 F.2d at
273. That language tells us only that a Rule 36 motion will never be untimely.
See, e.g., United States v. Mackay, 757 F.3d 195, 196 (5th Cir. 2014) (directing
district court to correct a clerical error under Criminal Rule 36 thirteen years
after the judgment).      It does nothing to suggest a district court can use
Criminal Rule 36 to divest us of jurisdiction, nor does it negate the general rule
that “[o]nly one court at a time has jurisdiction over a subject.” McHugh, 528
F.3d at 540; see Griggs, 459 U.S. at 58–60.
                                       III.
         There’s still a good reason to summarily dispose of the appeal—namely,
the indicative-ruling doctrine—and it reinforces our conclusion that the
district court lacked jurisdiction to correct Lucero’s sentence. Since 2012, the
Appellate Rules and Criminal Rules have anticipated scenarios just like this
one.      See 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3958.10 n.9 (4th ed. 2018); 3 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 644 (4th ed. 2018). Where a party asks
a “district court for relief that it lacks authority to grant because of an appeal
that has been docketed and is pending,” a district court may state “that it
would grant the motion” if it could. FED. R. APP. P. 12.1(a); FED. R. CRIM. P.
37(a)(3). Armed with that “indicative ruling,” we may remand so the district
court can do what it said it would do. See FED. R. CRIM. P. 37(c).


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      It makes no difference that the district court here thought (incorrectly)
that it had jurisdiction when it entered its order. The indicative-ruling regime
applies just the same where the indicative ruling is implied. See, e.g., Mendia
v. Garcia, 874 F.3d 1118, 1121–22 (9th Cir. 2017); United States v. Cardoza,
790 F.3d 247, 248–49 (1st Cir. 2015) (per curiam); Smitherman v. Bayview
Loan Servicing, L.L.C., 683 F. App’x 325, 326 (5th Cir. 2017) (per curiam).
Accordingly, we “treat the district court’s ineffectual sentence [alteration]
order as an indicative notice that, on remand, the district court is prepared to
grant such a[n] [alteration].” United States v. Rodríguez-Milián, 820 F.3d 26,
35–36 (1st Cir. 2016).
      We vacate the district court’s original judgment entered on August 25,
2017. See 28 U.S.C. § 2106 (any appellate court “may affirm, modify, vacate,
set aside or reverse any judgment, decree, or order of a court lawfully brought
before it for review, and . . . require such further proceedings to be had as may
be just under the circumstances”); Lawrence v. Chater, 516 U.S. 163, 166–68
(1996) (per curiam). This should aid the district court in implementing its
indicative ruling and avoid any potential unfairness to Lucero.
                                  *     *        *
      Based on the district court’s implied indicative ruling, we DENY the
Government’s unopposed motion to dismiss the appeal, but we VACATE the
original judgment and REMAND to the district court. We also DENY as moot
the Government’s alternative unopposed motion for an extension of time to file
its appellee’s brief.




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