F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-6250
v. (W.D. Oklahoma)
Le SON REED, (D.C. No. 92-CR-05-3-W)
Petitioner - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK , Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Le Son Reed, a federal inmate proceeding pro se, appeals the district
court’s denial of his motion under Fed. R. Civ. P. 60(a). For the reasons set forth
below, we affirm.
BACKGROUND
On March 17, 1992, Mr. Reed was convicted, following a jury trial, of four
counts relating to his participation in a cocaine distribution conspiracy. On
June 2, 1992, the district court sentenced Mr. Reed to 360 months’ imprisonment,
followed by five years of supervised release. He filed a direct appeal of his
conviction and sentence, which this court rejected. United States v. Reed , 1 F.3d
1105 (10th Cir. 1993). In 1997, Mr. Reed filed a post-conviction motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district
court denied the motion as time-barred, and this court affirmed. United States v.
Reed , No. 97-6316, 1998 WL 817750 (10th Cir. Nov. 27, 1998) (unpublished).
Mr. Reed’s further attempts in 2000 and 2001 to file a second or successive §
2255 motion, a motion under Fed. R. Civ. P. 60(b), and a motion under 28 U.S.C.
§ 2241 were also rejected by the courts.
On March 15, 2005, Mr. Reed filed a Motion for Imposition of Sentence of
Imprisonment, citing 18 U.S.C. § 3582(b)(1), (b)(3) and (c)(1)(A)(I), 18 U.S.C.
§ 3742, and United States v. Booker , 543 U.S. 220 (2005), in support of his
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request for a new sentencing hearing or a reduction in sentence. The district court
denied this motion on April 15, 2005. The court mailed a copy of this ruling to
Mr. Reed at his former location in the federal penitentiary in Lewisburg,
Pennsylvania. According to Mr. Reed, he received the copy at his current
location in the federal penitentiary in Lompoc, California, on May 2, 2005. He
then filed a Notice of Appeal, on which he recorded the date of May 5, 2005, but
which the district court filed on May 10, 2005. This court dismissed the appeal as
untimely. 1
United States v. Reed , No. 05-6167 (10th Cir. May 18, 2005)
(unpublished).
On July 8, 2005, Mr. Reed filed in district court a Motion for Relief from
Judgment or Order Due to Clerical Mistakes pursuant to Fed. R. Civ. P. 60(a),
arguing that his prior Notice of Appeal should be deemed timely because the
district court had caused a delay in his receipt of its April 15 ruling by mailing it
to an incorrect address. The district court denied this motion on July 19, 2005,
advising Mr. Reed that, under the court rules, it was his responsibility to notify
the court of an address change by filing the appropriate form.
1
Because 18 U.S.C. § 3582 essentially provides for a continuation of a prior
criminal case, the ten-day appeal period set forth in Fed. R. App. P. 4(b)(1)(A)
applies. United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir.
2003). 18 U.S.C. § 3742 provides for direct appeals of sentences imposed in
criminal cases.
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Mr. Reed filed a Notice of Appeal from this order. He then filed a Motion
to Reinstate Appellant’s Appeal in district court, renewing his objection to the
district court’s use of an incorrect mailing address, on September 19, 2005. On
September 30, 2005, the district court denied that motion as moot, in light of
Mr. Reed’s pending appeal before this court.
DISCUSSION
In this appeal, Mr. Reed asks us to reverse the district court’s July 19 and
September 30, 2005, rulings regarding the timeliness of his prior Notice of
Appeal. 2 As described above, Mr. Reed invoked Fed. R. Civ. P. 60(a) as the
vehicle for raising his argument that the district court’s use of an incorrect
address provided adequate justification for the untimeliness of his Notice, and he
filed his Rule 60(a) motion in district court after this court had already dismissed
Mr. Reed’s appeal as untimely.
2
The government points out that the district court’s August 30 and
September 30 orders were issued after Mr. Reed filed his Notice of Appeal in this
case, but suggests that the issues raised therein “can easily be dealt with in this
response and by the Circuit.” Appellee’s Br. at 7. Given our disposition of this
case, we need not further address this matter.
The government also appears to argue that this court, by sending a letter to
Mr. Reed, which he apparently received on September 20, 2005, containing
“instructions to proceed with his appeal,” meant to reinstate Mr. Reed’s prior
appeal, Reed, No. 05-6167. Appellee’s Br. at 7. We clarify that the letter was
referring to the present appeal, No. 05-6250.
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“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon ,
935 F.2d 1106, 1110 (10th Cir. 1991). However, pro se status does not excuse the
obligation to file a timely Notice of Appeal. Senjuro v. Murray , 943 F.2d 36, 38
(10th Cir. 1991) (per curiam). On the other hand, if the litigant does not receive
notice of the district court’s entry of judgment until after the time for filing a
Notice of Appeal has expired, relief may be available. Id. Because Mr. Reed’s
§ 3582 motion was a criminal filing, Espinosa-Talamantes , 319 F.3d at 1246, the
relief available is governed by Fed. R. Crim. P. 49(c) and Fed. R. App. P. 4(b)(4).
The latter provision indicates that,
[u]pon a finding of excusable neglect or good cause, the district court
may—before or after the time has expired, with or without motion
and notice—extend the time to file a notice of appeal for a period not
to exceed 30 days from the expiration of the time otherwise
prescribed.
Fed. R. App. 4(b)(4). “[A] defendant who filed his notice of appeal within the
Rule 4(b)[(4)] thirty-day extension period may obtain relief by showing excusable
neglect notwithstanding his failure to file a motion seeking such relief within that
same time frame.” Espinosa-Talamantes , 319 F.3d at 1246 (internal quotation
omitted).
There is no indication in the record that Mr. Reed made an adequate
showing of excusable neglect either in the district court or in this court when this
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court was considering Mr. Reed’s appeal of his § 3582 motion. The record
indicates that Mr. Reed did not file a petition for rehearing, pursuant to Fed. R.
App. P. 40, following this court’s dismissal of his appeal. The time for
requesting such a hearing has now expired. See Fed. R. App. P. 40(a)(1)
(indicating a petition for rehearing must be filed within fourteen days after the
appellate panel’s entry of judgment). 3
Thus, this court’s previous ruling that that
appeal should be dismissed as untimely is now the law of the case. Kennedy v.
Lubar , 273 F.3d 1293, 1300 & n.9 (10th Cir. 2001). Because the district court
had no power, under Rule 60(a) or otherwise, to reverse this court’s decision or to
reinstate the appeal, we affirm the district court’s denial of Mr. Reed’s Rule 60(a)
motion.
We further observe that current circuit law makes clear that Mr. Reed’s
request for a modified sentence under 18 U.S.C. § 3842 would have failed on the
merits. As indicated above, the sole basis for Mr. Reed’s request for a
modification was the Supreme Court’s decision in Booker . While Mr. Reed cited
§ 3842(c)(1)(A)(I), the only subsection of § 3842 that allows modification of a
sentence based on a defendant’s motion is subsection (c)(2). As the government
points out, we have recently held that “ Booker does not provide a basis for a
3
We note that even if Mr. Reed’s Rule 60(a) motion were construed as a
petition for rehearing, it would be untimely.
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sentence reduction under § 3582(c)[(2)].” United States v. Price , 438 F.3d 1005,
1007 (10th Cir. 2006). Mr. Reed raised no argument in his § 3842 motion that
warrants a modification of his sentence. 4
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
4
We note that we have reviewed Mr. Reed’s § 3582 motion although it was
not included in the record submitted on appeal.
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