United States v. Scott Fawcett

Case: 11-14051 Date Filed: 06/24/2013 Page: 1 of 19

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-14051
________________________

D. C. Docket No. 2:09-cr-00094-JES-SPC-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

SCOTT FAWCETT,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(June 24, 2013)

Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:

In 2009, Defendant Scott Fawcett pled guilty to aiding and abetting loan and

credit application fraud and was sentenced to 41 months’ imprisonment. In 2011,
 Case: 11-14051 Date Filed: 06/24/2013 Page: 2 of 19

the government filed a Federal Rule of Criminal Procedure 35(b) motion to reduce

Fawcett’s sentence for providing substantial assistance. The government’s Rule

35(b) motion requested a two-level offense reduction which the government said

yielded a guidelines range of 27 to 33 months. On June 30, 2011, the district court

granted the motion and reduced Fawcett’s sentence to 30 months’ imprisonment.

A day later, the district court discovered that the government had used the

wrong guidelines range for a two-level reduction. The district court vacated its

June 30 order and issued a new July 1 order imposing a 35-month sentence within

the correct guidelines range of 33 to 41 months.

On appeal, Fawcett contends that the district court lacked authority to

correct his sentence on July 1 and change it from 30 to 35 months. He also argues,

for the first time on appeal, that: (1) the government violated his plea agreement;

and (2) an evidentiary hearing was required on the substantial assistance motion.

Before addressing Fawcett’s arguments, we outline the complicated procedural

history in order to determine what we have jurisdiction over in this case.

I. BACKGROUND

A. Fawcett’s Plea Agreement and Sentence

A one-count information charged Scott Fawcett with aiding and abetting

loan and credit application fraud, in violation of 18 U.S.C. §§ 1014 and 2. In 2009,

Fawcett pled guilty and entered into a plea agreement with the government

2
 Case: 11-14051 Date Filed: 06/24/2013 Page: 3 of 19

wherein he agreed “to cooperate fully with the United States in the investigation

and prosecution of other persons, and to testify . . . fully and truthfully” in any

subsequent federal court or grand jury proceeding.

If Fawcett’s cooperation was completed subsequent to sentencing, the

government agreed to consider whether the cooperation warranted “the filing of a

motion for a reduction of sentence within one year of the imposition of sentence

pursuant to Fed. R. Crim. P. 35(b).” The government promised to “make known to

the Court and other relevant authorities the nature and extent of defendant’s

cooperation and any other mitigating circumstances indicative of the defendant’s

rehabilitative intent.” But Fawcett’s plea agreement acknowledged that “the

determination as to whether ‘substantial assistance’ has been provided or what type

of motion related thereto will be filed, if any, rests solely with the United States

Attorney for the Middle District of Florida.” Fawcett agreed that he would “not

challenge that determination, whether by appeal, collateral attack, or otherwise.”1

At sentencing, Fawcett’s total offense level of 22 and a criminal history

category of I yielded a guidelines range of 41 to 51 months’ imprisonment. The

district court sentenced Fawcett to 41 months’ imprisonment and entered a

1
About three months later, the government discovered that it had recited the wrong
elements of the offense in the plea agreement. Fawcett agreed to an addendum to the plea
agreement reciting the correct elements of the offense. Neither the addendum nor the elements
of Fawcett’s offense of conviction are at issue in this appeal.

3
 Case: 11-14051 Date Filed: 06/24/2013 Page: 4 of 19

judgment on the same day. 2

B. Government’s Substantial Assistance Motion

Subsequently, the government moved, under Federal Rule of Criminal

Procedure 35(b), to reduce Fawcett’s sentence based on his substantial assistance

in testifying in United States v. Debra Landberg. The government recommended

“a 2-level departure placing the defendant in a guideline range of 27 – 33 months.”

Fawcett did not respond to the Rule 35(b) motion and did not request an

evidentiary hearing.

C. Amended Judgment Reducing Fawcett’s Sentence

In a June 30, 2011 order, the district court: (1) granted the Rule 35(b)

motion; (2) observed that a two-level reduction in Fawcett’s offense level resulted

in a new guidelines range of 27 to 33 months; and (3) directed the clerk to enter an

amended judgment reducing Fawcett’s sentence to 30 months’ imprisonment.

The next day (July 1, 2011), and prior to the entry of an amendment to the

judgment, the district court realized that the government’s proposed guidelines

range of 27 to 33 months was incorrect, and that in actuality, a two-level reduction

produced a guidelines range of 33 to 41 months.3 Accordingly, in a July 1, 2011

2
A corrected judgment was entered on May 6, 2010, to reflect certain restitution amounts
determined after Fawcett’s sentencing.
3
This guidelines range resulted from a total offense level of 20 (a two-level reduction
from Fawcett’s original total offense level of 22) and a criminal history category of I. See
U.S.S.G. ch. 5, pt. A, Sentencing Table.
4
 Case: 11-14051 Date Filed: 06/24/2013 Page: 5 of 19

order, the district court sua sponte vacated its June 30, 2011 order, explaining that

it had relied upon the incorrect guidelines range provided in the government’s Rule

35(b) motion. Using the correct guidelines range of 33 to 41 months, the district

court granted the Rule 35(b) motion and imposed a sentence of 35 months’

imprisonment.

On July 11, 2011, the district court signed and entered an amended

judgment, reflecting Fawcett’s new 35-month sentence.

D. Fawcett’s July 19 Motion for Reconsideration or Correction of Sentence

On July 19, 2011, Fawcett, with counsel, filed a “Motion for

Reconsideration or Correction of Sentence.” Fawcett’s motion argued that on July

1 the district court lacked jurisdiction to increase Fawcett’s sentence. Fawcett

contended that once the district court granted the government’s Rule 35(b) motion

and imposed the 30-month imprisonment sentence on June 30, 2011, even pursuant

to an erroneous guidelines range, the district court “was without power or authority

to increase [Fawcett’s] previously reduced sentence from 30 to 35 months” on July

1. Although conceding that Rule 35(a) permits a district court to correct a sentence

that “resulted from arithmetical, technical, or other clear error,” Fawcett argued

that a district court’s consideration of an incorrect sentencing guidelines range is

not such an error. Fawcett’s July 19 motion asked the district court to “reinstat[e]

the 30 month incarceration” sentence.

5
 Case: 11-14051 Date Filed: 06/24/2013 Page: 6 of 19

E. District Court’s July 26 Order

In a July 26, 2011 order, the district court granted in part and denied in part

Fawcett’s Motion for Reconsideration or Correction of Sentence. As to

jurisdiction, the district court granted reconsideration but then concluded that, on

July 1, 2011, it had jurisdiction to correct Fawcett’s sentence from 30 to 35

months.

The district court observed that “[t]he government’s motion was factually

and technically incorrect when it asserted that a two level departure would result in

a new Sentencing Guidelines range of 27-33 months,” and “[d]efense counsel

failed to correct this factual error.” In light of the government’s sentencing table

error, the district court noted that: (1) under Rule 35(a), a court has jurisdiction to

correct a sentence that resulted from “arithmetical, technical, or other clear error”

within 14 days after sentencing; 4 and (2) under Rule 36, a court may correct an

error in the record arising from oversight or omission. 5 Concluding that it had

jurisdiction to change Fawcett’s sentence from 30 to 35 months, the district court

denied Fawcett’s motion to correct his sentence.

F. Fawcett’s Notice of Appeal and Motion to Extend Time

4
Federal Rule of Criminal Procedure 35(a) states that “[w]ithin 14 days after sentencing,
the court may correct a sentence that resulted from arithmetical, technical, or other clear error.”
5
Federal Rule of Criminal Procedure 36 provides that “[a]fter giving any notice it
considers appropriate, the court may at any time correct a clerical error in a judgment, order, or
other part of the record, or correct an error in the record arising from oversight or omission.”
6
 Case: 11-14051 Date Filed: 06/24/2013 Page: 7 of 19

On August 26, 2011 (and 31 days after the district court’s July 26 order),

Fawcett, pro se, moved to extend the time to file a notice of appeal from “the [July

26] Order denying Defendant’s Motion for Reconsideration o[r] Correction of

Sentence.” Fawcett’s motion argued that he had shown good cause for the

extension because: (1) while he was so far unsuccessful in obtaining new counsel,

he hoped to obtain counsel soon; (2) he was unaware of the 14-day time limit for

filing the appeal; and (3) the extension would cause no prejudice or inconvenience.

Fawcett also enclosed a notice of appeal, which stated his intent to appeal

“from the Order denying Defendant’s Motion for Reconsideration o[r] Correction

of Sentence, entered in this action on the 26th day of July, 2011.” A copy of the

district court’s July 26, 2011 order was attached to Fawcett’s notice of appeal.

On August 30, 2011, the district court granted Fawcett’s motion and

accepted his August 26 notice of appeal as “timely filed.” The district court

observed that a notice of appeal in a criminal case must be filed within 14 days of

the entry of either the judgment or order being appealed, but a district court may

“[u]pon a finding of excusable neglect or good cause,” “extend the time to file a

notice of appeal for a period not to exceed 30 days from” the time otherwise

provided in Federal Rule of Appellate Procedure 4(b). Fed. R. App. P. 4(b)(4).

The district court granted Fawcett’s motion for an extension and deemed his

August 26 notice of appeal as timely filed. The district court gave two reasons: (1)

7
 Case: 11-14051 Date Filed: 06/24/2013 Page: 8 of 19

the motion for an extension of time was filed within the requisite 30 days; 6 and (2)

good cause was “shown in light of defendant’s pro se status.”

II. GOVERNMENT’S MOTION FOR PARTIAL DISMISSAL OF APPEAL

In this Court, the government moved for a partial dismissal of Fawcett’s

appeal because Fawcett’s notice of appeal did not reference the district court’s July

1 order and July 11 amended judgment “correcting” Fawcett’s sentence and was

otherwise untimely as to that order and judgment. The government argues

Fawcett’s appeal can proceed only as to the July 26 order denying his Motion for

Reconsideration or Correction of Sentence.

In response, Fawcett urges us to construe his pro se notice of appeal as

encompassing the district court’s: (1) July 26 order; (2) July 1 order granting the

Rule 35(b) motion and resentencing Fawcett to 35 months’ imprisonment; and (3)

July 11 amended judgment imposing that 35-month sentence.7

Pursuant to Federal Rule of Appellate Procedure 3(c)(1)(B), a notice of

appeal must designate the judgment or order being appealed. “Although we

generally construe a notice of appeal liberally, we will not expand it to include

judgments and orders not specified unless the overriding intent to appeal these

6
This is incorrect. Fawcett’s motion to extend was filed August 26, 2011, 31 days after
the district court entered the July 26, 2011 order. See Fed. R. App. P. 26(a)(1).
7
We must resolve jurisdictional issues before addressing the merits of the underlying
claims, and we review all questions of jurisdiction de novo. United States v. Cartwright, 413
F.3d 1295, 1299 (11th Cir. 2005).

8
 Case: 11-14051 Date Filed: 06/24/2013 Page: 9 of 19

orders is readily apparent on the face of the notice.” Osterneck v. E.T. Barwick

Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). Nonetheless, when an

appellant designates an order denying a post-judgment motion in the notice of

appeal, the scope of appeal may extend to the underlying judgment or order. See

Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738–39 n.1 (5th Cir. 1980).8 In

Kicklighter, a panel of the Fifth Circuit held that an appeal from the denial of a

motion for judgment notwithstanding the verdict encompassed an appeal of the

judgment itself and observed that “an appeal is not lost if a mistake is made in

designating the judgment appealed from where it is clear that the overriding intent

was effectively to appeal.” Id. at 738–39 n.1 (internal quotation marks omitted).

Here, it was Fawcett’s overriding intent to appeal the district court’s

underlying July 1 order changing Fawcett’s sentence to 35 months and the July 11

amended judgment imposing it. Any analysis of whether the district court’s July

26 order correctly denied Fawcett’s July 19 Motion for Reconsideration or

Correction of Sentence would necessarily require an analysis of whether the

district court acted properly on July 1 to “correct” the sentence to 35 months in the

first place and on July 11 to enter the amended judgment.

The government argues that White v. State Farm Fire & Casualty Co., 664

8
All decisions of the former Fifth Circuit announced prior to October 1, 1981 are binding
precedent in this circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
9
 Case: 11-14051 Date Filed: 06/24/2013 Page: 10 of 19

F.3d 860 (11th Cir. 2011), controls the question here, but that civil case is

materially distinguishable. In White, the plaintiff’s notice of appeal referenced

only the district court’s order granting the defendant’s motion for reconsideration.

In that order, the district court reconsidered its analysis of the plaintiff’s breach of

contract claim and granted summary judgment in favor of the defendant on that

claim. Id. at 864. The district court did not address or reconsider the portions of

its prior order dismissing the plaintiff’s bad faith or fraud claims. Consequently,

this Court had no jurisdiction to consider an appeal from the district court’s

decisions on the plaintiff’s bad faith and fraud claims. Id. In contrast here,

Fawcett’s motion for reconsideration addressed the only issue and judgment

possible: the 35-month sentence.

Importantly, appellate consideration of the district court’s underlying July 1

and 11 rulings will not prejudice the government. It was clear from Fawcett’s

appellate brief that he wished to appeal the district court’s corrected 35-month

sentence, and both parties fully briefed the issues Fawcett seeks to raise in this

appeal. See, e.g., KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260

(11th Cir. 2006) (finding that appellant clearly intended to appeal district court

order, despite appellant’s failure to include that order in the notice of appeal;

appellant’s brief addressed only the issues in that order and because both parties

fully briefed the issues, the appellee suffered no prejudice if the notice of appeal

10
 Case: 11-14051 Date Filed: 06/24/2013 Page: 11 of 19

were construed to include the order); Campbell v. Wainwright, 726 F.2d 702, 704

(11th Cir. 1984) (noting that this Court will liberally construe the notice of appeal

in favor of the appellant “where the intent to appeal an unmentioned or mislabeled

ruling is apparent and there is no prejudice to the adverse party”).

Accordingly, we construe Fawcett’s pro se August 26 notice of appeal to

include the district court’s underlying July 1 order and the July 11 amended

judgment imposing Fawcett’s 35-month sentence.

The closer question is whether Fawcett’s appeal—construed to include the

July 1 order and July 11 amended judgment—is timely.

III. THE TIMELINESS OF FAWCETT’S APPEAL

The government also moved to partially dismiss Fawcett’s appeal because

his August 26 notice of appeal was untimely as to the underlying July 1 order and

July 11 amended judgment.

A party may appeal a judgment or order in a criminal case within 14 days of

the entry of the judgment or order. Fed. R. App. P. 4(b)(1)(A). 9 Here, Fawcett’s

time to appeal the July 11 amended judgment expired on July 25, 2011. See id.

As noted above, the time to file a notice of appeal may be extended to a time

not more than 30 days from the expiration of the 14-day time limit “[u]pon a

9
We note that while the deadlines in Rule 4(b) are not jurisdictional, we must apply Rule
4(b)’s time limits because the government has objected to the timeliness of Fawcett’s appeal. See
United States v. Lopez, 562 F.3d 1309, 1311–14 (11th Cir. 2009).
11
 Case: 11-14051 Date Filed: 06/24/2013 Page: 12 of 19

finding of excusable neglect or good cause.” Fed. R. App. P. 4(b)(4). Even using

both the 14-day and 30-day periods, Fawcett’s time to file a notice of appeal from

even the later July 11 amended judgment expired on August 24, 2011. See id.

Fawcett’s notice of appeal was filed two days later, on August 26, and was not

timely as to either the July 1 order or July 11 amended judgment unless some

tolling occurred. Fawcett’s Motion for Reconsideration or Correction of Sentence,

filed on July 19, is the only potential candidate for tolling.

The government argues that Fawcett’s July 19 motion did not toll the appeal

period because: (1) the motion expressly relied on Rule 35(a), which cannot toll

the appeal period; (2) while motions for reconsideration may toll the appeal period,

a party cannot evade the Rule 35(a) restrictions by characterizing a Rule 35(a)

motion as seeking “reconsideration” of a sentence; and (3) Fawcett’s motion was

cognizable, if at all, only under Rule 35. Fawcett’s August 26 notice of appeal was

not timely as to the July 1 order or the July 11 amended judgment, and thus we

must dismiss any appeal as to that order or amended judgment.

Under Federal Rule of Appellate Procedure 4(b)(3), three motions will toll

the time to appeal in a criminal case: (1) a Rule 29 motion for judgment of

acquittal; (2) a Rule 33 motion for new trial; and (3) a Rule 34 motion for arrest of

judgment. Fed. R. App. P. 4(b)(3)(A). Although not expressly authorized by the

Federal Rules of Criminal or Appellate Procedure, there is a fourth option

12
 Case: 11-14051 Date Filed: 06/24/2013 Page: 13 of 19

recognized by case law: a motion for reconsideration of an appealable criminal

order will toll the time for filing a notice of appeal, and the time will begin to run

anew if such motion is filed within the appeal period. See United States v. Dieter,

429 U.S. 6, 8–9, 97 S. Ct. 18, 19–20 (1976); United States v. Vicaria, 963 F.2d

1412, 1413–14 (11th Cir. 1992). This might help Fawcett except for the facts that:

(1) Fawcett’s motion specifically invoked Rule 35(a) as a basis; and (2) the Federal

Rules expressly provide that “[t]he filing of a motion under [Rule] 35(a) does not

suspend the time for filing a notice of appeal from a judgment of conviction.” Fed.

R. App. P. 4(b)(5).

Therefore, we conclude that Fawcett’s July 19 “Motion for Reconsideration

or Correction of Sentence” is a Rule 35(a) motion that may not be used to toll the

applicable appeal period. Importantly too, the sole relief sought in his July 19

motion was relief that may only be granted pursuant to Rule 35(a): modification of

his imprisonment sentence from 35 to 30 months. See 18 U.S.C. § 3582(c)(1)(B);

United States v. Phillips, 597 F.3d 1190, 1194–95 (11th Cir. 2010) (“The

unambiguous language of § 3582(c)(1)(B) indicates that, absent other express

statutory authority, modification of an imprisonment sentence can only be done

pursuant to Rule 35.”). Fawcett cannot recast what is essentially a Rule 35(a)

motion as a tolling motion for reconsideration in order to evade the strictures of 18

U.S.C. § 3582 and Rule 35. See Phillips, 597 F.3d at 1195; see also United States

13
 Case: 11-14051 Date Filed: 06/24/2013 Page: 14 of 19

v. Dotz, 455 F.3d 644, 648 (6th Cir. 2006) (rejecting defendant’s “creative

characterization” of his Rule 35(a) motion as a motion for reconsideration and

concluding that “[i]n the sentencing context, there is simply no such thing as a

‘motion to reconsider’ an otherwise final sentence” given the limited

circumstances under § 3582(c) in which a sentence can be modified). 10

The bottom line is Fawcett’s July 19 motion was not a tolling motion. As a

result, even with an additional 30 days as provided in Rule 4(b)(4), his appeal of

the July 1 order was due August 15 and his appeal of the July 11 amended

judgment was due August 24. Fawcett’s August 26 notice of appeal was untimely

and accordingly we grant the government’s motion to dismiss his appeal as to the

July 1 order and July 11 amended judgment. 11

IV. JULY 26 ORDER

10
Fawcett claims that United States v. Russo, 760 F.2d 1229 (11th Cir. 1985) (per
curiam), supports his argument that a timely motion for reconsideration can toll the time to
appeal an order denying or granting a Rule 35 motion. See id. at 1230. But as we have
determined, Fawcett’s July 19 motion was a Rule 35 motion. See Phillips, 597 F.3d at 1194–95,
1199–1200; Dotz, 455 F.3d at 648. The current Federal Rules explicitly state that a Rule 35
motion may not be used to toll the appeal period. See Fed. R. App. P. 4(b)(5). And in any event,
in Russo, the defendant sought to appeal the district court’s denial of Rule 35 relief, unlike here,
where the district court initially granted Rule 35 relief and Fawcett’s “motion for
reconsideration” therefore asks to correct a resentencing error. Thus, Russo does not help
Fawcett.
11
Consequently, we must also dismiss Fawcett’s claims on appeal that: (1) the
government violated his plea agreement; and (2) an evidentiary hearing was required on the
substantial assistance motion. These claims relate only to the district court’s July 1 order,
granting the government’s substantial assistance motion, which Fawcett did not timely appeal.
In addition, Fawcett never raised these issues before the district court, even in his July 19 motion
which was timely appealed. Thus, we decline to consider these issues.
14
 Case: 11-14051 Date Filed: 06/24/2013 Page: 15 of 19

A. 14-Day Time Limit on Correcting Sentences

While we determine that Fawcett’s appeal of the July 26 order is timely, yet

another complicated question arises because the district court did not rule on

Fawcett’s July 19 Motion for Reconsideration or Correction of Sentence until July

26, which was more than 14 days after entry of the July 1 order (correcting

Fawcett’s sentence) and the July 11 amended judgment (finalizing it). This creates

the question of whether on July 26 the district court still retained jurisdiction to act.

We say this because under Rule 35(a), a district court may, “[w]ithin 14 days

after sentencing, . . . correct a sentence that resulted from arithmetical, technical, or

other clear error.” Fed. R. Crim. P. 35(a). Additionally, we have held that Rule

35(a)’s 14-day time limit in which a district court may act to correct a sentence is

jurisdictional. United States v. Diaz-Clark, 292 F.3d 1310, 1317 (11th Cir. 2002);

see also Phillips, 597 F.3d at 1196–97. This jurisdictional limitation extends to the

district court’s authority to rule outside that time limit on an otherwise timely-filed

Rule 35(a) motion. See United States v. Higgs, 504 F.3d 456, 458–59, 464 (3d

Cir. 2007) (concluding that the district court was without jurisdiction to deny a

Rule 35(a) motion for reduction of sentence outside the Rule 35(a) time limit, even

when the defendant timely filed the Rule 35(a) motion); United States v. Shank,

395 F.3d 466, 470 (4th Cir. 2005) (concluding that, although the defendant filed a

Rule 35 motion within the then-seven day limit of Rule 35(a), the district court

15
 Case: 11-14051 Date Filed: 06/24/2013 Page: 16 of 19

lacked jurisdiction to deny the motion five months after sentencing).

We recognize that Fawcett’s July 19 motion was filed within 14 days of the

district court’s July 11 amended judgment. But even if only the July 11 amended

judgment started the 14-day clock under Rule 35(a),12 the district court did not act

on the July 19 motion until July 26, and at that time the district court lacked

jurisdiction to alter Fawcett’s sentence any further.

Accordingly, to the extent the district court’s July 26 order denied Fawcett’s

July 19 motion to correct his sentence under Rule 35, we affirm the district court’s

denial of that motion because the district court lacked jurisdiction, in any event, to

grant Rule 35 relief on July 26. Cf. Cani v. United States, 331 F.3d 1210, 1216

(11th Cir. 2003) (construing a dismissal as a denial because the district court

possessed subject matter jurisdiction and should have denied the defendant’s

motion on the merits).

B. Jurisdiction to Consider Jurisdiction

Although this would seem to end the matter, it doesn’t. There is yet one

more procedural ripple in the Fawcett pond. By its terms, the jurisdictional

limitation in Rule 35(a) only prohibits the district court from changing a sentence

outside the 14-day window. It does not prevent the district court from

12
Fawcett’s “sentencing” for purposes of Rule 35 more likely occurred on July 1, when
the district court entered its order granting the government’s substantial assistance motion and
correcting Fawcett’s sentence. See Phillips, 597 F.3d at 1199 n.20.

16
 Case: 11-14051 Date Filed: 06/24/2013 Page: 17 of 19

reconsidering its jurisdiction, an issue a district court may consider sua sponte. See

United States v. Hays, 515 U.S. 737, 742, 115 S. Ct. 2431, 2435 (1995) (“The

federal courts are under an independent obligation to examine their own

jurisdiction.” (internal quotation marks omitted)). As the district court explicitly

stated in its July 26 order, “[b]ecause defendant raises a jurisdictional issue, the

Court grants reconsideration.” Indeed, the focus of the district court’s July 26

order was arguably a reconsideration of whether it even had jurisdiction to correct

Fawcett’s sentence on July 1, and not solely whether Fawcett was otherwise

entitled to Rule 35 relief.

To the extent the district court in the July 26 order reconsidered whether it

had jurisdiction to correct Fawcett’s sentence on July 1, the district court did not

err in concluding it had such jurisdiction on July 1.

As we explained in United States v. Lett, 483 F.3d 782 (11th Cir. 2007),

“[t]he authority to correct a sentence under [Rule 35(a)] is intended to be very

narrow and to extend only to those cases in which an obvious error or mistake has

occurred in the sentence.” Id. at 787 (internal quotation marks omitted). We stated

that cases have further defined what constitutes “clear error” under Rule 35(a) as

“those obvious errors that result in an illegal sentence or that are sufficiently clear

that they would . . . ‘almost certainly result in a remand of the case to the trial court

for further action.’” Id. at 788 (quoting Fed. R. Crim. P. 35 advisory committee’s

17
 Case: 11-14051 Date Filed: 06/24/2013 Page: 18 of 19

note). Rule 35(a) is “not intended to afford the court the opportunity to reconsider

the application or interpretation of the sentencing guidelines or for the court simply

to change its mind about the appropriateness of the sentence.” Id. (internal

quotation marks omitted).

Contrary to Fawcett’s assertions, the district court here “did not simply

change its mind; nor did it simply reconsider its calculations under the appropriate

guidelines.” See United States v. Yost, 185 F.3d 1178, 1181 (11th Cir. 1999).

Rather, it imposed the 35-month sentence on July 1 because the district court

determined that the sentence on June 30 was imposed in reliance on the wrong

guidelines range. Cf. id. A quick reference to the U.S. Sentencing Guidelines

Sentencing Table made the error obvious, as a two-level departure resulted in a

guidelines range of 33 to 41 months, not 27 to 33 months. And the district court

acted well within the time frame imposed by Rule 35(a), correcting the sentence

the day after the erroneous sentence was ordered and even prior to the entry of

judgment. The district court did not err in concluding that it had jurisdiction under

Rule 35(a) to impose Fawcett’s 35-month sentence on July 1, 2011.

V. CONCLUSION

For these reasons, we grant the government’s motion and dismiss Fawcett’s

appeal as to the district court’s July 1 order and July 11 amended judgment. We

affirm the district court’s July 26 order denying Fawcett’s Motion for

18
 Case: 11-14051 Date Filed: 06/24/2013 Page: 19 of 19

Reconsideration or Correction of Sentence.

AFFIRMED IN PART; DISMISSED IN PART.

19