F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 2, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, Nos. 06-6081 & 06-6112
v. W .D. Oklahoma
R ON N STER LIN G , (D.C. No. CR-95-119-M )
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, 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.
Ronn Sterling, a federal prisoner appearing pro se, appeals from the district
court’s denial of his “M otion for O rder to Remit Fine/Restitution” pursuant to
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Rule 35 of the Federal Rules of Criminal Procedure. 1 The district court denied
the motion because it was not filed within seven days after sentencing as required
by Rule 35(a). Sterling filed a notice of appeal and an application to proceed in
form a pauperis (ifp) on appeal. The district court denied Sterling’s ifp motion
pursuant to 28 U.S.C. § 1915(a)(3), concluding his appeal was not taken in good
faith. Sterling then appealed the district court’s denial of his ifp application and
renewed his ifp application with this Court. Exercising jurisdiction under 28
U.S.C. § 1291, we AFFIRM .
I. Background
On October 18, 1995, a jury found Sterling guilty of bank robbery in
violation of 18 U.S.C. § 2113(a) & (d), carrying a firearm during and in relation
to a crime of violence in violation of 18 U.S.C. § 924(c)(1), and being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On December 19,
1995, the district court sentenced Sterling to a total of 160 months imprisonment.
Additionally, the district court ordered Sterling to pay First Enterprise Bank
$14,000.00 in restitution. The district court waived the payment of a fine because
of Sterling’s inability to pay both a fine and restitution. 2
1
Because Sterling appears pro se, we construe his pleadings liberally.
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
2
In the Judgement and Commitment Order, the district court checked a box
which states: “Fine is waived or is below the guideline range, because of the
defendant’s inability to pay both a fine and restitution. Community Service is not
ordered in lieu of a fine as the court finds that the defendant is not a suitable
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Sterling appealed his conviction, but not his sentence. W e upheld
Sterling’s conviction and the U.S. Supreme Court denied certiorari on October 6,
1997. See United States v. Sterling, 103 F.3d 145 (10th Cir. 1996) (unpublished),
cert. denied, 522 U.S. 882 (1997). In M arch 1999, the district court denied
Sterling’s motion to file a 28 U.S.C. § 2255 habeas petition outside the one-year
limitations period. Subsequently, we denied his application for a certificate of
appealability to appeal this denial. See United States v. Sterling, 198 F.3d 260
(10th Cir. 1999) (unpublished), cert. denied, 529 U.S. 1078 (2000).
In July 2004, Sterling began sending a series of letters to the Clerk of the
District Court seeking clarification of information on his criminal docket sheet.
The district court construed these letters as motions for clarification and denied
them because the statements in question were self-explanatory. Sterling followed
up with a letter on December 13, 2004, asserting the Bureau of Prisons (BOP) was
demanding he pay the restitution. In his opinion, both the fine and restitution
were waived at sentencing. Sterling requested the district court write a letter to
the BOP supporting his view. On December 28, 2004, the district court issued an
order informing him it would only consider papers properly filed or delivered in
accordance with the applicable federal and local rules. In a footnote, the court
indicated Sterling is responsible for the restitution and attached a copy of the
judgment.
candidate.” (R. Vol. I, Doc. 93 at 5.)
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In October 2005, Sterling filed a “M otion for Order to Remit Fine/
Restitution” pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
Sterling asserted the fine/restitution portion of his sentence was clearly erroneous
and an abuse of discretion based on the court’s failure to consider the
requirements of 18 U.S.C. §§ 3663 and 3664. 3 In Sterling’s opinion, the bank’s
insurance proceeds and the money collected from his co-defendants more than
compensated First Enterprise Bank for its losses. Additionally, Sterling argued
the restitution order should be vacated because the district court determined he
could not afford to pay a fine and he had been incarcerated for ten years. The
government responded that Rule 35(a), as interpreted by United States v. Green,
deprived the district court of jurisdiction to grant Sterling relief because more
than seven days had elapsed since sentencing. 405 F.3d 1180 (10th Cir. 2005).
The district court agreed. Sterling appealed and filed a motion to proceed ifp on
appeal which the district court denied pursuant to 28 U .S.C. § 1915(a)(3) because
his appeal was not taken in good faith. Thus, there are two appeals presently
before us. The first (Appeal No. 06-6081) challenges the district court’s denial of
Sterling’s motion to remit and the second (Appeal No. 06-6112) contests the
3
The pertinent language of 18 U.S.C. § 3663(a)(1)(B)(i) states: “The
court, in determining whether to order restitution under this section, shall
consider-- (I) the amount of the loss sustained by each victim as a result of the
offense; and (II) the financial resources of the defendant, the financial needs and
earning ability of the defendant and the defendant’s dependents, and such other
factors as the court deems appropriate.”
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district court’s denial of leave to proceed ifp in Appeal No. 06-6081. W e
consolidated Sterling’s appeals for procedural purposes.
II. Discussion
A. Appeal No. 06-6081: Denial of M otion to Remit
Rule 35(a) of the Federal Rules of Criminal Procedure provides: “W ithin 7
days after sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.” Sterling did not ask the district court
to correct his sentence until approximately ten years after sentencing. Clearly
Sterling’s motion is untimely. Here, the district court relied on United States v.
Green to determine it lacked jurisdiction under Rule 35(a) to remit its order. 405
F.3d 1180. We review de novo the district court’s jurisdictional determination.
United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996).
In Green, we determined a district court lacks jurisdiction under Rule 35(a)
to resentence a defendant more than seven days after the court orally imposes a
sentence. 405 F.3d at 1185-87. Eberhart v. United States calls into doubt the
jurisdictional nature of Rule 35(a)’s time limits. 546 U.S. 12 (2005). Even
assuming Rule 35(a) is not jurisdictional but rather a non-jurisdictional claim-
processing rule subject to forfeiture, the government properly raised it.
Therefore, the district court properly dismissed Sterling’s R ule 35 motion to
remit.
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To the extent Sterling’s Rule 35(a) motion should have been
recharacterized as a 28 U.S.C. § 2255 petition, it is outside the one-year statute of
limitations. See 28 U.S.C. § 2255. The district court appropriately denied his
request to file a § 2255 petition. M oreover, Sterling could not challenge the
restitution portion of his sentence in a § 2255 petition because he did not raise it
on direct appeal. “A defendant who fails to present an issue on direct appeal is
barred from raising the issue in a § 2255 motion, unless he can show cause for his
procedural default and actual prejudice resulting from the alleged errors, or can
show that a fundamental miscarriage of justice will occur if his claim is not
addressed.” United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Nothing
presented in the record persuades us that actual prejudice or a fundamental
miscarriage of justice would occur if Sterling’s claim is not addressed. Sterling
had the opportunity to address this issue on direct appeal and he cannot use Rule
35 or § 2255 as an end run around the direct appeal process.
B. Appeal No. 06-6112: Denial of Leave to Proceed Ifp
After the district court denied his “M otion for Order to Remit
Fine/Restitution” Sterling filed a notice of appeal and an application to proceed
ifp on appeal. The district court denied his ifp application pursuant to 28 U.S.C.
§ 1915(a)(3), concluding the appeal was not taken in good faith because Sterling
presented frivolous issues that involve inarguable legal conclusions. See Neitzke
v. W illiam s, 490 U .S. 319, 325 (1989). Sterling appealed the denial of his ifp
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application and renewed his motion for leave to proceed ifp with this Court. See
F ED . R. A PP . P. 24(a)(5).
In his opening brief, Sterling raises no claims of error with respect to the
district court’s denial of his request to proceed ifp. Nevertheless, appealing the
denial of his ifp application is not the proper procedure in this situation. Instead,
Rule 24(a)(5) of the Federal Rules of Appellate Procedure allows Sterling to
renew his ifp application with this Court, as he has done. This conclusion is
bolstered by the Advisory Committee’s Notes to the 1967 adoption of Rule 24:
[Rule 24(a)(5)] establishes a subsequent motion in the court of appeals,
rather than an appeal from the order of denial or from the certification
of lack of good faith, as the proper procedure for calling in question the
correctness of the action of the district court. The simple and
expeditious motion procedure seems clearly preferable to an appeal.
[Rule 24(a)(5)] applies only to applications for leave to appeal in forma
pauperis. The order of a district court refusing leave to initiate an
action in the district court in forma pauperis is review able on appeal.
See Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954,
94 L.Ed. 1326 (1950).
F ED . R. A PP . P. 24 advisory committee’s note (emphasis added). Therefore, we
will simply address Sterling’s renewed application with this Court. W e have
review ed his contentions and adopt the district court's finding that this appeal is
not taken in good faith. Coppedge v. United States, 369 U.S. 438, 446 (1962).
W e deny Sterling’s motion to proceed ifp on appeal and order him to immediately
remit the full amount of the filing fee. W e remind him of his obligation to pay
the filing fee even on an appeal that has been dismissed. See Kinnell v. Graves,
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265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not relieve
appellant of the obligation to pay the appellate filing fee in full).
For the forgoing reasons we AFFIRM Appeal No. 06-6081, DISM ISS
Appeal No. 06-6112 and DENY Sterling’s renewed application to proceed ifp on
appeal.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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