United States of America v. Frank Perez, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 20, 2025 *
Decided June 23, 2025
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-3292
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK PEREZ, JR.,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:13-CR-111-PPS-JEM
Philip P. Simon,
Judge.
O R D E R
Frank Perez, Jr., appeals the district court’s denial of a motion to “correct” his
written sentencing judgment under Rule 36 of the Federal Rules of Criminal Procedure.
As the sentencing judge explained, the written judgment is accurate, so we affirm.
* We have agreed to decide the 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. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-3292 Page 2
Perez’s imprisonment springs from federal convictions in two districts. First,
starting in the 1990s in the Northern District of Indiana, he joined a racketeering
conspiracy involving drug trafficking and murder. He evaded capture for years. A
second set of crimes, involving his gunfire at agents who found and arrested him a
decade later (no one was injured), took place in the Western District of Pennsylvania.
The indictment in Pennsylvania came first, within a month of Perez’s 2011 arrest.
He pleaded guilty and was sentenced in 2012 to 180 months’ imprisonment. While he
was serving that sentence, he was indicted in the Northern District of Indiana for the
earlier racketeering conspiracy. See 18 U.S.C. § 1962(d). He again pleaded guilty,
expressly waiving his right to appeal. And in 2018, the district court imposed
188 months’ imprisonment, to be served “concurrent to the sentence that he’s serving in
the Western District of Pennsylvania.” The written judgment reflected these terms and
made no additional recommendation to the Bureau of Prisons.
For years after that, according to Perez, the Bureau told him that he would be
released in 2025. But then, in 2024, the Bureau announced instead a date in 2030. Why
the calculation changed is not clear on this record, but Perez suggests that Bureau
officials changed their minds about whether he would receive credit against the Indiana
sentence for some of the time spent in custody before the second judgment was entered.
Perez responded by asking the district court in Indiana to “correct” the written
judgment under Federal Rule of Criminal Procedure 36, apparently to account for the
pretrial-detention credits Perez had expected. But the district judge who had imposed
the sentence denied this motion: The oral sentencing included no statement about
credits, so there was no mismatch with the written judgment, and for what it was
worth, the written and oral judgments alike reflected the judge’s intent.
Yet Perez maintains that the judge should have reduced his sentence by five
years to mirror the relief obtained on direct appeal by a coconspirator named Adron
Tancil. See generally United States v. Tancil, 817 F. App’x 234 (7th Cir. 2020)
(nonprecedential disposition). The district court disagreed, and so do we.
Tancil, like Perez, was in prison for another conviction when he was indicted for
the Indiana conspiracy. Unlike Perez, at sentencing Tancil asked the judge to
recommend credit for a span of his pre-plea detention, and the judge agreed. Id. at 235.
But that credit was unavailable because the same span had already been credited
against Tancil’s state sentence. Id. at 237. On direct appeal, Tancil convinced us that the

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No. 24-3292 Page 3
judge clearly intended a sentence that accounted for pre-plea detention, so we
remanded the case for the judge to reduce the overall sentence as an offset. Id. at 238.
Here, by contrast, the judge explained that he did not mention credits at Perez’s
sentencing because Perez did not ask, and the judge did not otherwise intend to
recommend credits. In any event, this is not a direct appeal. Perez seeks to reopen his
case and alter a judgment under Rule 36, a vehicle for curing clerical mismatches
between written and oral sentencing pronouncements. This rule does not permit a court
to alter a written judgment that accurately reflects the judge’s decision. United States v.
McClain, 16 F.4th 487, 491 (7th Cir. 2021). There was no error here, clerical or otherwise.
In his reply brief, Perez also insists that because the judge said this sentence
would be “concurrent” with the one from the Western District of Pennsylvania, it
should be treated as having run from the start-date of that earlier sentence. But even
setting aside whether saving this argument for the reply brief waived it, the district
judge clarified, in denying the Rule 36 motion, that Perez’s interpretation is not what
the judge meant by a concurrent sentence. Nor are we aware of any cases suggesting
that this is what judges ordinarily mean by a concurrent sentence.
AFFIRMED

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