USA v. Mark Cubie
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6879695-1]  [17-1448]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 23, 2017*
Decided October 27, 2017
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
UNITED STATES OF AMERICA,
MARK A. CUBIE,
Appeal from the United States District
Court for the Eastern District of Wisconsin.
Nine years ago, Mark Cubie was convicted of conspiring to distribute cocaine
and crack, 21 U.S.C. §§ 841(a)(1), 846, and for carrying a firearm during a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A)(1). He was sentenced to a total of 295 months’
imprisonment, and we affirmed the judgment on appeal. United States v. Nicksion,
628 F.3d 368, 378 (7th Cir. 2010). In this appeal, we consider whether the district court
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
must modify its judgment pursuant to Federal Rule of Criminal Procedure 36 to remedy
a clerical error. We conclude that no correction is required.
During the course of the drug conspiracy, Cubie’s codefendants murdered a man
named Earl Benion. Cubie’s presentence investigation report contained a description of
the murder, to which he objected. The PSR described evidence—that Cubie disputed—
showing that he personally participated in the murder, or that it was a foreseeable part
of the conspiracy, and thus the murder could be used against Cubie at sentencing. The
parties agreed that it would not make a difference to his offense level, so at the
sentencing hearing, Judge Clevert required an amendment to the PSR to reflect that the
murder “has not been used in calculating the guidelines.” But the judge denied Cubie’s
request to redact mention of the Benion murder from the PSR, and we also affirmed that
decision (on waiver grounds) in the prior appeal. Id.
At sentencing the government argued that the court should consider the Benion
murder as a sentencing factor under 18 U.S.C. § 3553(a) and, for that reason, sentence
Cubie at the high end of the guidelines range. After extensive argument, Judge Clevert
determined that the evidence was mixed, and offered a compromise that the parties
accepted instead of holding an evidentiary hearing—that, given the factual disputes, he
would “not utilize[e] the Benion death as a factor in sentencing in this matter.”
See FED. R. CRIM. P. 32(i)(3)(B). Judge Clevert then elaborated: “I can certainly include
that in the Judgment of Conviction so that it is quickly apparent that the Benion death
was not a sentencing factor in this case.” He explained that the court’s exceptions to the
PSR “oftentimes are set forth in the Judgment of Conviction” and are “certainly
included in the Court’s minutes.” This, he continued, would “make clear to a reviewing
Court or to the Bureau of Prisons how this Court has viewed the facts.”
Having decided not to consider the murder, Judge Clevert sentenced Cubie at
the bottom of the guidelines range: 235 months for the conspiracy count and the
consecutive mandatory minimum of 60 months for the firearm count. Despite
Judge Clevert’s assurances, though, the judgment, the minute order, and the Statement
of Reasons did not mention that the court disregarded Benion’s murder in its
consideration of the § 3553(a) factors—they each said, in some form, only that the judge
did not use the murder in calculating the offense level under the guidelines.
Over eight years after judgment was entered, Cubie moved, pro se, for
amendment of the judgment under Federal Rule of Criminal Procedure 36 to correct “a
clerical error, specifically, an omission.” He argued that because a “sentencing factor”
for § 3553(a) purposes is not synonymous with “offense level,” the Statement of
Reasons was incomplete. Judge Pepper, to whom the case had been reassigned in 2015,
denied the motion because the record—including the sentencing hearing transcript, the
Statement of Reasons, and the PSR—was “accurate and complete” and thus there was
no clerical error to correct. She also concluded that the terminology that Cubie
challenged as incomplete encapsulated the concept that Judge Clevert did not use the
murder as a “sentencing factor.”
Rule 36 allows a court, at any time, to correct “a clerical error in a judgment,
order, or other part of the record, or correct an error in the record arising from oversight
or omission.” A clerical error is “a gaffe in transcribing or putting a judicial decision on
the docket.” United States v. Newman, 794 F.3d 784, 786 (7th Cir. 2015); see also United
States v. Daddino, 5 F.3d 262, 264 (7th Cir. 1993) (noting that Rule 36 “does not apply to
errors made by the court itself”). Cubie would have us review the denial of his motion
de novo, because it pertains to a perceived conflict between the oral and written
judgments. See United States v. Orozco-Sanchez, 814 F.3d 844, 847 (7th Cir. 2016). And of
course that would be the standard on a direct appeal of his sentence. But we review the
denial of a motion to amend the judgment under Rule 36 for abuse of discretion.
United States v. Niemiec, 689 F.2d 688, 692 (7th Cir. 1982).
To support his argument that a correction of the record is called for, Cubie relies
on cases in which correction under Rule 36 was warranted because of an inconsistency
resulting in a material error in the written judgment. See United States v. Medina-Mora,
796 F.3d 698, 700 (7th Cir. 2015) (correcting a judgment improperly stating sentence was
consecutive); United States v. Quintero, 572 F.3d 351, 353 (7th Cir. 2009) (affirming
judgment corrected to include forfeiture on which all parties agreed); United States v.
Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (correcting special condition of supervised
release). But see United States v. Bonanno, 146 F.3d 502, 512 (7th Cir. 1998) (declining to
correct “trivial” four dollar discrepancy in restitution payment plan).
In contrast, there is no inconsistency here between the orally pronounced
sentence and the written judgment and its attached Statement of Reasons: the judgment
accurately reflects the crimes of conviction and the sentence, and the Statement of
Reasons correctly notes that the Benion murder did not influence the guidelines
calculation. True, Judge Clevert also stated he was not considering Benion’s murder as a
sentencing factor, and we agree with Cubie that there is a distinction (which perhaps
the district court glossed over in its order denying his motion) between using facts to
calculate an offense level and considering them in fashioning a reasonable sentence
under § 3553(a). Here, the Benion homicide could not change the offense-level
calculation, but it could have justified imposing a higher sentence within the guidelines
range or even varying above the guidelines recommendation. So the judgment, the
Statement of Reasons, and the minute order all could have been more precise about
how Judge Clevert treated the Benion murder. But it does not follow that there is a
meaningful discrepancy between the orally pronounced sentence and the written
description of Judge Clevert’s reasoning.
Cubie has not shown that he is entitled to have the omitted language
memorialized in the judgment order when it had no impact on his sentence. See
United States v. McHugh, 528 F.3d 538, 541 (7th Cir. 2008) (explaining that amending
another judge’s statement of reasons while leaving sentence untouched is akin to an
advisory opinion). In neither his motion before the district court nor his brief on appeal
has he asserted any harm or prejudice from the omission. See FED. R. CRIM. P. 52 (“Any
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”). Judge Clevert clearly and repeatedly stated in the sentencing hearing
the Benion murder would have no bearing on Cubie’s sentence. The record as a whole
is clear, and it would be an exercise in triviality to require the district court to belabor
that point in writing all these years later.
Accordingly, we AFFIRM the order of the district court.
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