United States v. Guerra

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 10, 2010
No. 10-10049 JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 1:05-cr-20144-PCH-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll Plaintiff-Appellee,

versus

ISABEL GUERRA,

lllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(August 10, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

Isabel Guerra appeals from the district court’s order denying her motion to

correct her sentence pursuant to Fed.R.Crim.P. 35(a) and (36). Guerra argues that
the court erred in denying her motion because her 70-month sentence, imposed on

remand, is vindictive. She further argues that her sentence violates the Eighth

Amendment’s prohibition on cruel and unusual punishment because it is

disproportionate to the nature of her underlying crimes of health care fraud and

money laundering. She also indicates that her sentence violated the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), but does not explain why or how this violation occurred. In

her reply brief, Guerra argues that the district court had jurisdiction to reduce her

sentence because we previously had “reversed” her sentence by holding that the

district court erred in calculating her guideline range. She further contends that

her motion under Rule 35(a) was timely, because she filed this motion several days

after the court remanded her into custody to serve her sentence.

Guerra also argues that the district court’s criminal forfeiture order violates

the Eighth Amendment’s prohibition on excessive fines, as the amount that she

was ordered to forfeit was disproportionate to the gravity of her offenses. In her

initial brief and in her reply brief, Guerra raises various arguments as to why the

court had jurisdiction to vacate or modify its forfeiture order, and as to why we

should consider her arguments regarding the forfeiture order on appeal.

For the reasons set forth below, we affirm in part, and dismiss in part.

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 I.

In June 2005, Guerra was convicted of the following offenses: (1) 1 count

of conspiracy to defraud the United States, to commit health care fraud, and to pay

kickbacks, in violation of 18 U.S.C. § 371 (“count 1”); (2) 15 counts of health care

fraud, in violation of 18 U.S.C. §§ 1347 and 2 (counts 2, 4, 6-7, 9-13, 15-20); (3) 1

count of conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h) (“count 21”); and (4) 3 counts of money laundering, in violation of 18

U.S.C. §§ 1956(a)(1)(B)(i) and 2 (“counts 24, 27-28”). The district court entered a

preliminary order of forfeiture, directing that Guerra forfeit real and personal

property to the United States, including a monetary sum of $9,405,114.90. The

court subsequently entered a judgment sentencing Guerra to a total term of 99

months’ imprisonment.

In May 2007, we entered an opinion vacating Guerra’s convictions as to the

health care fraud offenses charged in counts 2, 4, and 7. See United States v.

Medina, 485 F.3d 1291, 1300 (11th Cir. 2007). In addition, we remanded for

resentencing, as the district court had failed to make specific factual findings in

support of its determination of the loss amount used to calculate Guerra’s

guideline range. See id. at 1303-05. Shortly after we entered our decision, Guerra

was released from prison on bond.

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 On remand, the court calculated Guerra’s guideline range based on the

money laundering guidelines set forth in U.S.S.G. § 2S1.1. Applying these

guidelines, the court found that Guerra’s base offense level was 6, and that this

offense level should be increased by 14 levels pursuant to § 2S1.2(a)(2), because

Guerra was responsible for more than $400,000 in laundered funds. After

applying additional increases and adjustments, the court determined that Guerra’s

total offense level was 26, which, when combined with her criminal history

category of I, produced a guideline range of 63 to 70 months’ imprisonment.

In February 2008, the court entered an amended judgment, in which it

adjudicated Guerra guilty as to counts 1, 6, 9-13, 15-21, 24, and 27-28. The court

resentenced Guerra to a total term of 70 months’ imprisonment. In addition, the

court amended the preliminary order of forfeiture to specify that Guerra would

forfeit a monetary sum of $7,641,968.98. The court further specified that, if the

ordered forfeiture amount was later found to be incorrect, a maximum fine of

$1,300,000.00 would be imposed.

Guerra again appealed from her convictions and sentences. See United

States v. Guerra, 307 Fed.Appx. 283 (11th Cir. 2009). In January 2009, we

entered an opinion in which we noted that, in calculating Guerra’s guideline range,

the district court incorrectly had applied the guidelines applicable to money

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laundering offenses, under § 2S1.1, instead of the guidelines applicable to

Guerra’s underlying offenses of health care fraud, under § 2B1.1. Id. at 287. We

explained that, because the court had erred in applying the money laundering

guidelines, it had erred in increasing Guerra’s offense level by 14 levels pursuant

to § 2S1.1(a)(2). We further noted that, under the health care fraud guidelines,

Guerra’s correct total offense level was 12, with a resulting guideline range of 10

to 16 months’ imprisonment. Id. Nevertheless, we held that the district court’s

error in calculating Guerra’s guideline range was harmless, because: (1) the record

showed that the court would have imposed the same sentence even if it had

calculated Guerra’s guideline range correctly, and (2) a 70-month sentence was

reasonable in this case. Id. at 287-88. The mandate issued in April 2007. Guerra

filed a petition for a writ of certiorari to the Supreme Court, and the Supreme

Court denied certiorari. See Guerra v. United States, 558 U.S. ___, 130 S.Ct. 58,

175 L.Ed.2d 23 (2009).

After the Supreme Court denied certiorari, the government filed a motion to

remand Guerra into custody. The court granted the government’s motion, ordering

that Guerra be remanded into custody to serve the remainder of her sentence.

Several days after the court entered this order, Guerra, through counsel, filed a

motion to correct her sentence, pursuant to Fed.R.Crim.P. 35(a) and 36. In her

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motion, Guerra asserted that, in our January 2009 opinion, we “reversed” the 14-

level increase to her offense level under § 2S1.1(a)(2), and held that her correct

guideline range was 10 to 16 months’ imprisonment. Guerra also asserted that her

70-month sentence constituted a 700% upward variance from her correct guideline

range, and stated that, in the event that this variance “was the result of an

arithmetical error,” she requested that the court correct the error, as it resulted in

an unreasonable sentence. In addition, Guerra asserted that the court had imposed

a fine of $1,300,000, and stated that, if the $1,300,000 fine resulted from an

arithmetical error, she requested that it be corrected.

On the following day, Guerra, again represented by counsel, filed a separate

motion under Fed.R.Civ.P. 60(b), requesting that the court vacate the amended

$7,641,968.98 forfeiture order. She argued that the amount was inequitable, and

that the court had jurisdiction to modify or vacate its forfeiture order.

The government responded, arguing, among other things, that the court

lacked jurisdiction to grant relief based on Guerra’s motions under Fed.R.Crim.P.

35(a) and 36 and Fed.R.Civ.P. 60(b), because we had affirmed her convictions and

sentence, and the doctrine of res judicata barred her attempt to relitigate

sentencing issues. After the parties filed additional pleadings related to Guerra’s

motions under Fed.R.Civ.P. 35(a) and 36, and Fed.R.Civ.P. 60(b), the court held a

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hearing to allow Guerra to clarify the grounds on which she sought post-judgment

relief.

At the hearing, Guerra reasserted her argument that we reversed her 70-

month sentence in our January 2009 opinion. The court stated that it believed that

a 70-month sentence was appropriate, and that, even if it were to resentence

Guerra based on a guideline range of 10 to 16 months’ imprisonment, it again

would impose a 70-month sentence. The court also found that, because we had

affirmed Guerra’s sentence, it lacked jurisdiction to modify the sentence. The

court added that it found that the government’s argument— that the doctrine of res

judicata barred Guerra’s attempt to relitigate sentencing issues— was persuasive.

The court stated that it would deny “both motions” because it lacked jurisdiction

to grant the relief that Guerra requested. During the hearing, the parties and the

court did not specifically mention Guerra’s motion to vacate or modify the

forfeiture order under Fed.R.Civ.P. 60(b).

On December 17, 2009, the court entered an “Order Denying Defendant’s

Rules 35(a) and 36 Motion for Correction of Sentence.” In its order, the court

stated that it had reviewed Guerra’s “motions” to correct her sentence under Rules

35(a) and 36, and specified the docket number for Guerra’s motion under Rules

35(a) and 36. In its order, the court did not mention Guerra’s separate motion

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under Fed.R.Civ.P. 60(b), nor did it refer to the docket number for this motion. In

her notice of appeal, Guerra stated that she appealed “from the district court order

of December 17, 2009, denying [the] [d]efendant’s Rules 35(a) and 36 Motion for

[C]orrection of [S]entence and Rule 60(b) Motion for Relief [f]rom Forfeiture

Judgement.”

II.

We review de novo the issue of whether a district court possesses

jurisdiction to resentence a defendant. United States v. Diaz-Clark, 292 F.3d

1310, 1315 (11th Cir. 2002). We review a district court’s application of the law-

of-the-case doctrine de novo. United States v. Bobo, 419 F.3d 1264, 1267 (11th

Cir. 2005).

Under the law-of-the-case doctrine, “an appellate decision binds all

subsequent proceedings in the same case.” United States v. Amedeo, 487 F.3d

823, 829-30 (11th Cir. 2007) (quotation omitted). “An appellate decision binds all

subsequent proceedings in the same case not only as to explicit rulings, but also as

to issues decided necessarily by implication on the prior appeal.” United States v.

Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). Pursuant to the mandate rule,

which is an application of the law-of-the-case doctrine, a district court may not

vary an appellate court’s mandate, nor may it “examine [the mandate] for any

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other purpose than execution; or give any other or further relief; or review it, even

for apparent error, upon a matter decided on appeal; or intermeddle with it, further

than to settle so much as has been remanded.” Amedeo, 487 F.3d at 830.

(quotation omitted). There are three exceptions to the applicability of the law-of-

the-case doctrine and the mandate rule: “(1) a subsequent trial produces

substantially different evidence, (2) controlling authority has since made a

contrary decision of law applicable to that issue, or (3) the prior appellate decision

was clearly erroneous and would work manifest injustice.” Id. (quotation and

alteration omitted).

“The authority of a district court to modify an imprisonment sentence is

narrowly limited by statute.” United States v. Phillips, 597 F.3d 1190, 1194-95

(11th Cir. 2010). Specifically, 18 U.S.C. § 3582(c) provides that a district court

“may not modify a term of imprisonment once it has been imposed” unless one of

the following situations applies: (1) the Director of the U.S. Bureau of Prisons

moves to reduce the defendant’s term of imprisonment; (2) a modification

otherwise is expressly permitted by statute, or by Fed.R.Crim.P. 35; or (3) the

defendant was sentenced based on a guideline range that subsequently was

reduced by the U.S. Sentencing Commission, and a reduction is consistent with

the Commission’s policy statements. 18 U.S.C. § 3582(c); Phillips, 597 F.3d at

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1195. “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.” Phillips, 597 F.3d at 1195. Outside of the parameters

set forth by federal sentencing statutes and the Federal Rules of Criminal

Procedure, a district court may not invoke an “inherent power” to correct a

sentence, even where the sentence is illegal. Diaz-Clark, 292 F.3d at 1315, 1319.

At the time that Guerra filed her motion under Rules 35(a) and 36, Rule

35(a) provided that, “[w]ithin 7 days after sentencing, the court may correct a

sentence that resulted from arithmetical, technical, or other clear error.”

Fed.R.Crim.P. 35(a).1 This seven-day time period is jurisdictional, and, as a result,

a court’s attempt to amend a sentence under Rule 35(a) after the prescribed time

period is a “legal nullity.” Phillips, 597 F.3d at 1196.

Rule 36 provides that, “after 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.”

1
Effective December 1, 2009, Rule 35(a) provides that a court may correct a sentence
within 14 days after sentencing. See Fed.R.Crim.P. 35(a) (2009). Guerra filed her motion under
Rules 35(a) and 36 on November 28, 2009, a couple of days before the 2009 amendments to Rule
35(a) took effect. At the time that the court entered its order disposing of this motion, however,
the 2009 amendments had taken effect. Nevertheless, even if the 2009 amendments applied in
this case, Guerra filed her motion under Rules 35(a) and 36 more than a year after resentencing,
well beyond the time period prescribed by either version of Rule 35(a).

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Fed.R.Crim.P. 36. “Rule 36 may not be used to make a substantive alteration to a

criminal sentence.” United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir.

2004).

Here, the district court correctly found that it lacked jurisdiction to grant

relief based on Guerra’s motion to correct her sentence under Fed.R.Crim.P. 35(a)

and 36. We affirmed Guerra’s sentence in our January 2009 opinion, and the

mandate did not provide the court with authority to modify Guerra’s sentence. See

Amedeo, 487 F.3d at 830. Guerra’s contention that we reversed her sentence is

erroneous, as we affirmed her sentence, expressly holding that the district court’s

error in calculating Guerra’s guideline range was harmless, and that her 70-month

sentence was reasonable. See Guerra, 307 Fed.Appx. at 287-88. Although Guerra

argues that the criminal judgment in her case has resulted in manifest injustice, we

implicitly rejected this argument by holding that her sentence was reasonable. See

Tamayo, 80 F.3d at 1520. In her pleadings below and on appeal, Guerra has not

identified intervening controlling authority or new evidence that would

demonstrate that an exception to the law-of-the-case doctrine and the mandate rule

applies, nor has she demonstrated that our January 2009 decision was “clearly

erroneous” or may result in “manifest injustice.”

Moreover, Guerra has failed to identify any applicable statute or rule that

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provided the court with jurisdiction to modify her sentence. While Guerra relied

on Fed.R.Crim.P. 35(a), this rule did not provide a jurisdictional basis for the court

to reduce her sentence, because she filed her motion well over a year after her

resentencing, and the court thus did not act within seven days of sentencing. See

Phillips, 597 F.3d at 1196. Although Guerra contends that her motion was timely

because she filed it several days after the court remanded her into custody, Rule

35(a) expressly provides that its limitations period is triggered by the date of

sentencing, and Guerra does not cite to any authority in support of her argument

that the date that a defendant is remanded into custody may serve as the triggering

date. Rule 36 likewise did not provide a jurisdictional basis for the court to

modify Guerra’s sentence, as Guerra’s request that the court reduce her 70-month

sentence constituted a request to substantively alter the court’s judgment. See

Portillo, 363 F.3d at 1164. Finally, Guerra does not assert, nor does the record

demonstrate, that any of the other bases for a sentence reduction set forth in 18

U.S.C. § 3582(c) are applicable in this case.

Because Guerra has failed to identify a jurisdictional basis that would have

permitted the court to modify her sentence, we affirm as to this issue, and need not

address Guerra’s arguments that her sentence was vindictive, and that it violated

the Eighth Amendment as well as the Supreme Court’s decision in Apprendi.

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 III.

We are obligated to address questions concerning our jurisdiction sua

sponte. Thomas v. Blue Cross and Blue Shield Ass’n, 594 F.3d 823, 828 (11th Cir.

2010). Our “jurisdiction is ordinarily limited to appeals from final decisions of the

district courts.” Id.; 28 U.S.C. § 1291. We have explained that:

In postjudgment proceedings, the meaning of a “final decision” [may not
be] clear because the proceedings necessarily follow a final judgment.
Postjudgment decisions are themselves subject to the test of finality . . .
[a] postjudgment order is final for purposes of section 1291 only if the
order disposes of all issues raised in the motion.

Id. (quotations omitted). “If a post-judgment order is apparently the last order to

be entered in the action, it is final and appealable.” Delaney’s Inc. v. Ill. Union

Ins. Co., 894 F.2d 1300, 1304 (11th Cir. 1990).

Although neither party contests our jurisdiction to consider Guerra’s

arguments regarding her motion under Fed.R.Civ.P. 60(b), we sua sponte consider

this issue and dismiss this portion of Guerra’s appeal. See Thomas, 594 F.3d at

828. Because the court did not enter an order disposing of Guerra’s separate

motion under Fed.R.Civ.P. 60(b), there is no final decision by the district court

within the meaning of 28 U.S.C. § 1291. In denying Guerra’s motion under

Fed.R.Crim.P. 35(a) and 36, the court stated that it was denying Guerra’s

“motions,” but expressly referred only to Guerra’s motion under Rules 35(a) and

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36, and did not mention the docket number for her motion under Rule 60(b). As a

result, the court’s order denying Guerra’s motion under Rules 35(a) and 36 cannot

also be construed as a final order disposing of her Rule 60(b) motion. Because the

record does not include a final order disposing of Guerra’s Rule 60(b) motion, we

dismiss this issue for lack of jurisdiction. See 28 U.S.C. § 1291.

AFFIRMED IN PART; DISMISSED IN PART.

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