United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 15, 2008
No. 06-3182
UNITED STATES OF AMERICA,
APPELLEE
v.
WAYNE BYFIELD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 89cr00322-01)
Wayne Byfield, pro se, was on the brief for appellant.
Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese,
III, Elizabeth Trosman, Patricia Stewart, and L. Jackson
Thomas II were on the brief for appellee.
Before: SENTELLE, Chief Judge, and BROWN and
GRIFFITH, Circuit Judges.
2
PER CURIAM: Wayne Byfield appeals the district court’s
denial of his motion to modify his sentence under 18 U.S.C.
§ 3582(c)(2). Because Byfield did not timely file a notice of
appeal, we dismiss his appeal.
In 1992, Byfield was convicted of possession with intent
to distribute 607.8 grams of a “mixture or substance”
containing cocaine base and sugar. The Sentencing Guidelines
for drug-possession convictions at the time were based upon
“the entire weight of [the] mixture or substance” possessed.
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c), note A
(2007). Using that standard, the Guideline range for Byfield’s
conviction was a sentence between 292 and 365 months. The
district court chose the lower end of that range and sentenced
Byfield to 292 months in prison. In 1993, the Sentencing
Commission revised the Sentencing Guidelines by excluding
from the calculation of the weight of the “mixture or
substance” all “materials that must be separated from the
controlled substance before the controlled substance can be
used.” U.S. SENTENCING GUIDELINES MANUAL amend. 484
(2007 Appendix C). Byfield asked the district court to modify
his sentence under 18 U.S.C. § 3582(c)(2), which provides
that a court may reduce a sentence when the Sentencing
Commission has subsequently lowered the range that had
been used to determine that sentence. Byfield argued that the
district court was required to subtract the weight of the sugar
from the calculation of his sentence because the cocaine base
could not be used before the sugar had been separated. With
the sugar subtracted, Byfield would qualify for a sentence of
235 to 293 months, so he asked that his sentence be reduced
to 235 months.
The district court denied Byfield’s motion, concluding,
without holding an evidentiary hearing, that the sugar did not
need to be separated to use the cocaine base. We held that the
3
failure to take evidence on the issue was error, reversed the
district court’s determination, and on remand instructed the
court to conduct an evidentiary hearing. United States v.
Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004). On remand, the
district court again denied Byfield’s motion for sentence
reduction. Byfield now appeals that ruling. The only issue we
address is whether his notice of appeal, filed 125 days after
the district court’s order denying his motion, was timely. We
hold that his notice of appeal was not filed within the time
limit authorized by the Federal Rules of Appellate Procedure.
The time limit for filing a notice of appeal turns on the
nature of the case. For criminal matters, “a defendant’s notice
of appeal must be filed in the district court within 10 days
after the later of” the entry of the district court’s order or the
filing of the government’s notice of appeal. FED. R.
APP. P. 4(b)(1)(A). For civil matters in which the government
is a party, the notice of appeal “may be filed by any party
within 60 days after the judgment or order appealed from is
entered.” FED. R. APP. P. 4(a)(1)(B). In either circumstance,
the district court may extend the time period by 30 days for
“excusable neglect or good cause.” FED. R. APP. P. 4(a)(5),
4(b)(4). At most, therefore, Byfield had 90 days to file his
notice. Because he waited 125 days, his filing was untimely,
regardless whether a motion to modify a sentence under 18
U.S.C. § 3582(c)(2) is properly characterized as criminal or
civil.
We have never decided whether a motion to modify a
sentence under § 3582(c)(2) is civil or criminal in nature.
Because the purpose of such a motion is to ask the sentencing
court to reduce a sentence in light of changes to the
Sentencing Guidelines, we conclude that it is part of the
defendant’s criminal proceeding and therefore subject to the
10-day time limit of Federal Rule of Appellate Procedure
4
4(b)(1)(A). With this decision, we join each of the other nine
circuits that has addressed the issue. See United States v. Fair,
326 F.3d 1317, 1318 (11th Cir. 2003); United States v.
Arrango, 291 F.3d 170, 171–72 (2d Cir. 2002); United States
v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000); United States v.
Petty, 82 F.3d 809, 810 (8th Cir. 1996); United States v. Ono,
72 F.3d 101, 102–03 (9th Cir. 1995); United States v. Benanti,
No. 05-1965, 2005 U.S. App. LEXIS 11871, at *2 (3d Cir.
June 21, 2005); United States v. Miller, No. 04-6917, 2004
U.S. App. LEXIS 24560, at *1–2 (4th Cir. Nov. 24, 2004);
United States v. Saffo, No. 04-6112, 2004 U.S. App. LEXIS
23916, at *12 (10th Cir. Nov. 16, 2004); United States v.
Damon, No. 02-5616, 2003 U.S. App. LEXIS 809, at *4 (6th
Cir. Jan. 16, 2003). As the leading case on the issue explains,
Because the purpose of a § 3582 motion is
resentencing, a motion under § 3582(c)(2) is
undoubtedly a step in the criminal case.
Similarly, because a sentencing court’s
consideration of a § 3582(c)(2) motion requires
the court to reexamine the original sentence in
light of changes to the applicable Guidelines
. . . , an order granting or denying such a
motion is criminal in nature.
United States v. Ono, 72 F.3d at 102 (citations and quotation
marks omitted).
Byfield’s notice was untimely filed, and his appeal
should be dismissed. He contends, however, that the
government waived its right to challenge his appeal on this
ground. Our local rules require that, absent good cause shown,
any motion to dismiss Byfield’s appeal must have been filed
by the government within 45 days of the docketing of his
5
appeal.1 That deadline came on March 30, 2007. The
government, however, first challenged the timeliness of
Byfield’s appeal in its August 28, 2007 motion to dismiss, and
then again in its opening brief filed August 30, 2007. Byfield
argues that these objections were themselves too late. But we
do not require a party to raise Rule 4(b) issues in a motion to
dismiss. To the contrary, in United States v. Singletary we
held that “no rule, order, internal procedure, or published
guidance from this court require[s] [the government] to object
to the untimeliness of the appeal under FED. R. APP. P. 4(b)
before it file[s] its initial brief.” 471 F.3d 193, 196 (D.C. Cir.
2006).2 Here, the government’s objection was proper because
it was raised in the government’s initial brief. Accordingly,
this appeal is
Dismissed.
1
See D.C. CIR. R. 27(g)(1) (“Any motion which, if granted, would
dispose of the appeal or petition for review in its entirety, or
transfer the case to another court, must be filed within 45 days of
the docketing of the case in this court, unless, for good cause
shown, the court grants leave for a later filing.”).
2
In Singletary, we assumed that Rule 4(b) is not jurisdictional and
that the government may therefore forfeit its right to object to a late
notice of appeal in a criminal case by not raising the issue properly.
471 F.3d at 196. We now know this for sure after Bowles v. Russell,
127 S. Ct. 2360 (2007). In that case, the Supreme Court decided
that Rule 4(a) is jurisdictional because it has a statutory basis. See
id. at 2366; see also 28 U.S.C. § 2107(a) (statutory basis for Rule
4(a)). In light of Bowles, we now hold that Rule 4(b) is not
jurisdictional because it was judicially created and has no statutory
analogue. Other circuits have also adopted this view. See United
States v. Garduno, 506 F.3d 1287, 1290–91 (10th Cir. 2007);
United States v. Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007);
United States v. Sadler, 480 F.3d 932, 940 (9th Cir. 2007).