1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 ------

4 August Term, 2020

5 (Motion Submitted: February 24, 2021 Decided: July 26, 2021)

6 Docket Nos. 20-1762, 20-3276, 20-3286

7 _________________________________________________________

8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v. - 11 GARY JACQUES, 12 Defendant-Appellant.* 13 _________________________________________________________ 14 Before: KEARSE and CARNEY, Circuit Judges**.

* The Clerk of Court is respectfully requested to amend the official caption as set forth above.

** The late Circuit Judge Robert A. Katzmann, formerly a member of the panel, died before this opinion was filed. Under 2d Cir. IOP E(b), this appeal is (continued...) 1 Motion in No. 20-1762 by the United States to dismiss defendant's appeal

2 from an order of the United States District Court for the Eastern District of New York,

3 Nina Gershon, Judge, denying his motion under Fed. R. Crim. P. 36 to correct errors

4 in his judgment of conviction ("First Order"). The government contends that that

5 appeal is moot because the district court entered a second order, making the

6 corrections requested in defendant's previously denied Rule 36 motion ("Second

7 Order"). We conclude that because the district court entered the Second Order while

8 defendant's appeal challenging the First Order was pending, the district court lacked

9 authority to enter the Second Order; and we thus deny the government's motion to 10 dismiss No. 1762. 11 In Nos. 20-3286 and 20-3276, which have been consolidated with 12 No. 20-1762, defendant appeals from the Second Order (No. 20-3286) and appeals 13 from an order denying his motion for compassionate release under the First Step Act 14 (No. 20-3276). Because the Second Order indicates the district court's desire to correct 15 the judgment of conviction, in Nos. 20-1762 and 20-3286 we vacate the First Order and 16 the Second Order, respectively; and we remand to the district court, restoring its

(...continued) being decided by the remaining members of the panel, who are in agreement.

-2- 1 authority to enter whatever amended judgment it finds appropriate to correct the

2 operative judgment's clerical errors.

3 We direct the Clerk of Court to unconsolidate No. 20-3276, which

4 challenges the denial of defendant's motion for compassionate release, and to

5 recalendar that appeal for a merits panel or a motions panel, as appropriate, for

6 resolution in the ordinary course, and to consider consolidating No. 20-3276 with a

7 new First Step Act appeal filed by Jacques, No. 21-1277.

8 Vacated and remanded in Nos. 20-1762 and 20-3286; No. 20-3276 is to be

9 restored to the calendar. 10 Seth D. DuCharme, Acting United States Attorney for the 11 Eastern District of New York, Brooklyn, New York (Amy 12 Busa, Ryan Harris, Assistant United States Attorneys, 13 Brooklyn, New York, of counsel), for Appellee. 14 Gary Jacques, Fort Dix, New Jersey, Defendant-Appellant 15 pro se.

16 KEARSE, Circuit Judge: 17 In appeal No. 20-1762, defendant pro se Gary Jacques, who was convicted 18 of various offenses in 2011, and whose sentence was thereafter reduced pursuant to 19 18 U.S.C. § 35