Daniels v. United States of America

Filing 34

ORDER signed by Judge J P Stadtmueller on 11/21/2018. 33 Respondent's Unopposed Motion to Supplement the Record on Appeal is GRANTED. Specified correspondence (Docket #33-1) is ADMITTED in the record. See Order. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL DANIELS,
Petitioner,
v.

Case No. 15-CV-1440-JPS

UNITED STATES OF AMERICA,

ORDER

Respondent.
On March 19, 2016, Petitioner filed an amended motion to vacate, set
aside, or correct his sentence, in which he challenged the residual clause in
the Sentencing Guidelines and his designation as a “career offender” at his
sentencing hearings. (Docket #9). The Court denied his motion on June 16,
2017 but granted a certification of appealability. (Docket #22). Petitioner
filed a notice of appeal on August 9, 2017. (Docket #24). On November 16,
2018, Respondent filed an unopposed motion to supplement the record on
appeal with a letter from the Probation Office. (Docket #33).
Motions to modify the record pursuant to Federal Rule of Appellate
Procedure 10(e) must be presented first to the district court. 7th Cir. R. 10(b).
“The district court’s ruling on the motion must be included as part of the
record, and a notice of the order must be sent to the court of appeals.” Id.
Courts may supplement a record on appeal “when the supplemental
material would provide helpful context.” Crockett v. Hulick, 542 F.3d 1183,
1188 n.3 (7th Cir. 2008); Coleman v. Hardy, 628 F.3d 314, 315 n.1 (7th Cir.
2010).
Respondent states that the new correspondence from the Probation
Office will provide useful context to the Seventh Circuit in adjudicating the

appeal in light of the case’s long procedural history. (Docket #33 at 2–3).
Petitioner does not oppose the motion. The letter that Respondent moves to
include in the record explains that Petitioner was incorrectly classified as a
career offender, which affected his criminal history category, but did not
affect his total offense level or the guideline imprisonment range. (Docket
#33-1 at 2). The letter also discusses whether the designation affects his
security classification by the Bureau of Prisons. Id. at 3–4. This letter may
provide helpful context for the appeal.
Accordingly,
IT IS ORDERED that Respondent’s unopposed motion to
supplement the record on appeal (Docket #33) be and the same is hereby
GRANTED; and
IT IS FURTHER ORDERED that the recent correspondence from
the United States Probation Office (Docket #33-1) be and the same is hereby
ADMITTED in the record.
Dated at Milwaukee, Wisconsin, this 21st day of November, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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