Weekly Case Digests December 6, 2021 - December 10, 2021.

• Author: Hawkins, Derek
• Position: United States of America v. David McClain; Kenneth Heiting, et al., v. United States of America; Jamar E. Plunkett v. Dan Sproul and other cases

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. David McClain

Case No.: 21-2089; 21-2090

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Court Error Sentence Modification Criminal Procedure Rule 36

The district court modified David McClain's two federal prison sentences under Rule 36 of the Federal Rules of Criminal Procedure, and McClain appeals. He contends that the changeswhich added 18 months of prison time and required him to re-enter federal prison after he had been releasedwere not merely clerical. As a result, he argues, they could have been made only under Federal Rule of Criminal Procedure 35. But that avenue for modification was unavailable because the fourteen-day period for altering a sentence had long passed. The government argues that because of clerical errors, the written judgments did not reflect what was orally pronounced at a 2013 resentencing hearing and therefore required a mere clerical "correction" pursuant to Federal Rule of Criminal Procedure 36.

McClain is correct that the changes to his sentences were not merely clerical, and so the district court erred by "correcting" the sentences under Rule 36. We agree and vacate both amended judgments. We have already ordered McClain's release and now explain our reasoning in greater detail.

Vacated and remanded with instructions

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7th Circuit Court of Appeals

Case Name: Kenneth Heiting, et al., v. United States of America

Case No.: 20-1324

Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges.

Focus: IRS Claim of Right Tax Computation

Plaintiffs Kenneth and Ardyce Heiting brought this action seeking an income tax refund of the taxes they had paid on an unauthorized sale of stock by a trust. The IRS denied the relief, and the Heitings filed their complaint seeking the refund. The district court granted the government's motion to dismiss that complaint, and the Heitings appeal that decision.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jamar E. Plunkett v. Dan Sproul

Case No.: 20-2461

Officials: SYKES, Chief Judge, and FLAUM, and KIRSCH, Circuit Judges.

Focus: Plea & Sentencing Collateral-attack Waivers

A grand jury indicted petitioner-appellant Jamar Plunkett on a charge of distributing crack cocaine. Plunkett pleaded guilty after the government established that his prior Illinois drug conviction subjected him to an enhanced statutory maximum sentence. Plunkett now appeals the district court's decision to deny his 2241 collateral attack on his sentence. Plunkett, however, waived his appellate rights, subject only to limited exceptions not presently applicable. Given this waiver, we now dismiss his appeal.

Dismissed

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7th Circuit Court of Appeals

Case Name: Driftless Area Lan Conservancy, et al., v. Rebecca Valcq, et al.,

Case No.: 20-3325

Officials: SYKES, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

Focus: Sovereign Immunity

This appeal is another chapter in concurrent federal and state litigation challenging the construction of a $500 million, 100-mile power line in southwestern Wisconsin. In September 2019 the Public Service Commission of Wisconsin issued a permit authorizing two transmission companies and an electricity cooperative to build and operate the line. A few months later, two environmental groups filed lawsuits in both federal and state court seeking to invalidate the permit. As relevant here, the parallel suits allege that two of the three commissioners had disqualifying conflicts of interest and should have recused themselves. Both suits raise federal due-process claims; the state litigation also invokes state recusal law and contests the permit on other state-law grounds.

The case was last here at an early stage of the proceedings when the district judge rejected the permit holders' motion to intervene. We reversed that decision and remanded with instructions to grant the intervention motion. Driftless Area Land Conservancy v. Huebsch ("Driftless I"), 969 F.3d 742 (7th Cir. 2020). Rulings on dismissal motions followed, and the judge significantly narrowed the scope of the case. But he denied the commissioners' motion to dismiss based on sovereign immunity. The case returns to us on that issue.

The state and federal suits are clearly parallel for purposes of Colorado River. The environmental groups have raised materially identical due-process recusal claims in both state and federal court. Given the contextthis case implicates serious state interests regarding the operation of Wisconsin administrative law and judicial review of state-agency proceedingsit's appropriate to abstain from exercising federal jurisdiction to give the state courts an opportunity to decide the recusal issue. Litigating the same conflict-of-interest questions in both court systems is duplicative and wasteful; comity and the sound administration of judicial resources warrant abstention under Colorado River. We remand with instructions to stay the case pending resolution of the state proceedings.

Reversed and...