In the
United States Court of Appeals
For the Seventh Circuit
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No. 16-3132
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEVEN R. SCHENIAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 15-CR-246 — William C. Griesbach, Chief Judge.
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ARGUED JANUARY 24, 2017 — DECIDED JANUARY 30, 2017
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Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
EASTERBROOK, Circuit Judge. After pleading guilty to drug
and firearms charges, Steven Schenian was sentenced to 144
months’ imprisonment—two years higher than the statutory
minimum, but within the Guidelines range of 135 to 168
months. The plea bargain included an agreement that the
prosecutor would recommend a sentence of 144 months,
2 No. 16-3132
while Schenian would argue for less. The district judge ac-
cepted the prosecutor’s recommendation.
Schenian used illegal drugs in addition to peddling them.
While in jail on these charges he had his girlfriend smuggle
drugs to him, but he told the judge that he had decided to
turn his life around. The prosecutor stated, however, that a
urine sample collected the evening before sentencing
showed that Schenian even then had one unauthorized drug
in his system. When imposing sentence the judge did not
mention the previous night’s test but did deem it significant
that Schenian had continued using drugs while in custody.
The prosecutor turned out to have been mistaken. He
had misinterpreted raw data from the test. The lab report
concluded that Schenian had not been on drugs at the time
of that test. Eight days after Schenian’s sentencing, the pros-
ecutor sent letters to the court and Schenian’s lawyer disclos-
ing the error. The district court promptly issued this order:
The Court has considered the correction of information con-
veyed in the Government’s … letter. The Court remains con-
vinced that the original sentence imposed in this case was suffi-
cient but not greater than necessary to accomplish the purpose of
sentencing. None of the facts contained in that letter would lead
the Court to alter its decision.
Schenian then asked the judge to use Fed. R. Crim. P. 35(a) to
resentence him. This rule provides: “Within 14 days after
sentencing, the court may correct a sentence that resulted
from arithmetical, technical, or other clear error.” The judge
denied this request, explaining:
In response to the Government’s letter correcting the record
made at the sentencing hearing … , counsel for the defendant
has requested resentencing. Having reviewed the presentence
report, the Court remains convinced that the sentence imposed
No. 16-3132 3
was sufficient but not greater than necessary to accomplish the
goals of sentencing as set forth in 18 U.S.C. §3553. The Court
notes that it imposed a sentence of 72 months on each of the two
counts to be run consecutively for a total of 144 months, or 12
years. This was the sentence that the Government had agreed to
recommend in the plea agreement that was filed with the Court
on April 18, 2016, months before the sentencing hearing where
the erroneous information surfaced. Furthermore, given the na-
ture of the crime and the history of the defendant, the Court
would have been inclined to impose a higher sentence, had it not
been for the Government’s recommendation. Under these cir-
cumstances, the Court is satisfied that the erroneous information
concerning [Schenian’s] use of drugs just before his sentencing
did not affect his sentence. Had it done so, the Court would have
ignored the plea agreement and gone above the 12 years recom-
mended by the Government. Indeed, the 144 month sentence fell
well within the Guideline range. For this reason, and for the rea-
sons set forth in the Court’s sentencing comments, the motion for
resentencing or reduction in sentence is denied.
Despite having asked the district judge to use his power
under Rule 35(a) to reduce the sentence, Schenian argues to
us that the judge had no such power—that no “arithmetical,
technical, or other clear error” occurred. As Schenian now
sees things, because the judge had no power to grant the re-
quest, he likewise had no power to deny it; if he lacked pow-
er to deny it, then we must ignore his statement that the er-
ror did not affect the sentence; and if we ignore the district
judge’s views, then the only sensible thing to do is to remand
for resentencing, which Schenian thinks should be conduct-
ed by a different judge. We do not agree with any part of this
chain of contentions.
Let us suppose for the moment that a sentence affected
by a particular proposition of fact cannot be called a “clear
error” even though everyone now agrees that the proposi-
4 No. 16-3132
tion was false. Then the district judge could not have granted
the motion. But he still had power to deny the motion. The
need to deny a motion does not determine what reason a
judge gives for taking the required action. The district judge
might have said “I have no authority to grant this motion”
and stopped. But he equally could have said “I would deny
this motion even if I had the power to grant it, and here’s
why.” The district court denied Schenian’s motion without
deciding whether he had the power to grant it, explaining
that the sentence did not reflect an error of any kind. If there
was no error, there was no clear error. The absence of a clear
error was at once a reason not to grant the motion and a rea-
son why the judge lacked authority to grant the motion. Ei-
ther way, the judge’s explanation supplies valuable infor-
mation that a court of appeals can consider.
If the district judge came to think that the sentence was
too high, because it had been influenced by a false belief that
Schenian was on drugs the night before sentencing, that
would have revealed a “clear error” that would have al-
lowed the judge to fix the problem within 14 days of sen-
tencing. A mistakenly high sentence cannot be called an
“arithmetical” or “technical” gaffe, but an error it would
be—and if the error was clear only in hindsight, still it would
be “clear error.” Cf. Henderson v. United States, 133 S. Ct. 1121
(2013) (an error that is plain only in retrospect can be cor-
rected as “plain error” under Fed. R. Crim. P. 52(b)). The
“clear error” standard of Rule 35(a) and the “plain error”
standard of Rule 52(b) may well be the same thing—the for-
mer for use by district courts (with a short time limit) and
the latter for use by appellate courts. What could be gained
by declaring that a district court cannot rectify an obvious
error? The main function of Rule 35(a) is to allow district
No. 16-3132 5
judges to fix errors that otherwise would be bound to pro-
duce reversal. See United States v. Clark, 538 F.3d 803, 809 (7th
Cir. 2008).
Schenian’s problem is not that a judge’s reliance on false
information can never be “clear error.” It is that the district
judge did not rely on the false information, so there was no
judicial error. The prosecutor made an error, and that error
was clear in retrospect (once the lab released its report). But
Rule 35(a) does not authorize a judge to revise a sentence be-
cause one of the litigants has made a mistake. It authorizes
the court to fix sentences affected by its own errors, whether
they be arithmetical, technical, or otherwise “clear”. Once a
judge has decided that the sentence is unaffected by error,
there is no need for a do-over.
What the district judge said shows that Schenian’s sen-
tence was unaffected by the prosecutor’s error. We have no
reason to doubt the judge’s assessment of his own thinking.
Indeed, his second explanation strikes us as compelling. See
also, e.g., United States v. Abbas, 560 F.3d 660, 666–67 (7th Cir.
2009), among the many cases in which we have accepted a
district judge’s reasoned statement that a particular fact or
legal belief did not affect a sentence. A remand for further
proceedings would waste everyone’s time.
AFFIRMED