United States of America v. Kenneth E. Palm

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2025*
Decided April 11, 2025
Before
DIANE S. SYKES, Chief Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1992
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH E. PALM,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 03-CR-10024-001
Joe Billy McDade,
Judge.
O R D E R
Kenneth Palm appeals from an order denying his motion under Rule 35(a) of the
Federal Rules of Criminal Procedure to correct his sentence of reimprisonment imposed for
violations of his supervised release. 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1992 Page 2
Palm was sentenced in 2004 to 204 months in prison and 13 years of supervised
release for conspiring to distribute methamphetamine, 21 U.S.C. § 846, and possessing a
firearm in furtherance of the conspiracy, 18 U.S.C. § 924(c). He served his prison
sentence and was released to supervision, but he repeatedly violated his court-imposed
conditions and his release was revoked three times. His third revocation proceeding
culminated in a hearing on May 10, 2024, at which the district judge ordered Palm back
to prison for a term of 18 months and 8 days. That sentence was four months above the
top of the range of 8 to 14 months suggested by the advisory policy statement in
U.S.S.G. § 7B1.4(a).
The revocation judgment was entered that same day, May 10. Eleven days later,
on May 21, Palm filed a flurry of pro se motions, including one under Rule 35(a) to
correct his sentence. That rule provides that “[w]ithin 14 days after sentencing, the court
may correct a sentence that resulted from arithmetical, technical, or other clear error.”
F ED. R. C RIM . P. 35(a). Palm’s argument to correct his revocation sentence relied on Rule
32(h) and guidelines policy statement § 6A1.4, which in the era of the mandatory
Sentencing Guidelines governed departures from a guidelines range. Palm asserted that
Rule 32(h) entitled him to notice that the judge was contemplating an upward
departure from the guidelines range. Because the judge did not give advance notice that
he was considering a sentence above the guidelines policy-statement range, Palm
requested a sentence modification. On May 31 the judge denied the motion, explaining
that Palm was not raising the kind of “arithmetical” or similar error that Rule 35(a)
covers.
Palm filed a notice of appeal on June 9, too late to appeal the underlying
revocation judgment but in time to challenge the denial of his Rule 35(a) motion. We
therefore limited this appeal to the judge’s order denying the Rule 35(a) motion. Palm
renews his argument that the judge should have warned him before the sentencing
hearing that he might face a sentence above the policy-statement recommendation. This
omission, he says, is the type of “clear error” Rule 35(a) is meant to correct. But by the
time the judge decided the motion—21 days after judgment—the rule’s 14-day window
to correct the sentence had closed. See F ED. R. C RIM . P. 35(a); United States v. Salinas,
365 F.3d 582, 586 (7th Cir. 2004). Relief was unavailable.
In any event, as the judge recognized, Palm’s challenge to his sentence falls
outside the scope of Rule 35(a), which is quite narrow. The rule permits district judges
to correct only “obvious” technical errors, United States v. Clark, 538 F.3d 803, 809 (7th
Cir. 2008), and here we see no error at all. Guidelines “departures”—and Rule 32(h)’s

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No. 24-1992 Page 3
requirement of advance notice of potential departures—became obsolete 20 years ago
when the Sentencing Guidelines became advisory. See Irizarry v. United States, 553 U.S.
708, 714–16 (2008) (holding that upward variance from advisory range is not subject to
notice rules that had governed departures from mandatory ranges); United States v.
Brown, 732 F.3d 781, 783 (7th Cir. 2013) (“Because departures are obsolete, Rule 32(h) no
longer has any work to do.”); see also Salinas, 365 F.3d at 588 (noting that policy
statements for revocation sentences were advisory even when Guidelines for initial
sentences were viewed as mandatory). So the district judge could not have “corrected”
the sentence based on Palm’s theory even if he had ruled on the motion within the 14
days permitted by Rule 35(a) and such a correction was within the narrow scope of the
rule.
AFFIRMED

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