[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15129 March 31, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 94-00050-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEWEY WAYNE SALTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 31, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Dewey Wayne Salter appeals his 15-month sentence imposed
upon revocation of his supervised release, 18 U.S.C. 3583. Salter argues that the
district court erred when it calculated the applicable advisory guideline range
because it incorrectly determined that his violation of supervised release for
driving under the influence of alcohol was a grade B violation. Salter did not raise
this argument before the district court until he filed a motion for relief under
Fed.R.Crim.P. 35(a), after he filed the present notice of appeal. Salter did not
amend the notice of appeal or file a new one after the district court denied his Rule
35(a) motion.
Scope of Appeal
“We have an obligation to review sua sponte whether we have jurisdiction.”
United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005). “We review
questions of jurisdiction de novo.” Id. Under Fed.R.App.P. 4(b)(1)(A)(i), a
criminal litigant must file a notice of appeal within ten days after the entry of
judgment or the order being appealed. Cartwright, 413 F.3d at 1299. “Absent the
filing of a timely notice of appeal, a Court of Appeals is without jurisdiction to
review the decision on the merits.” Id. (citation omitted). Under Fed.R.App.P.
3(c), the notice of appeal must designate the judgment, order, or part being
appealed. Cartwright, 413 F.3d at 1299-1300. When a criminal litigant files a
notice of appeal after final judgment, but before the denial of a motion to correct a
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sentence under Fed.R.Crim.P. 35(a), the litigant must file a new notice of appeal or
amend the prior notice of appeal for us to have jurisdiction to review the denial of
the Rule 35(a) motion. See Cartwright, 413 F.3d at 1300.
In this case, the record demonstrates that Salter did not file a new notice of
appeal or amend his original notice of appeal after the district court denied his Rule
35(a) motion. Accordingly, we lack jurisdiction to review the district court’s
denial of the Rule 35(a) motion. See id.
Sentence upon Revocation of Supervised Release
We do have jurisdiction to review the final judgment. Since Salter did not
timely object to the district court’s application of the Guidelines, we review the
sentence for plain error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir.
2006). We have discretion to correct an error under the plain error standard where
(1) an error occurred, (2) the error was plain, (3) the error affected substantial
rights, and (4) the error seriously affects the fairness, integrity or public reputation
of judicial proceedings. See id. at 831-32. Under the third prong of the plain error
test, the burden is on Salter to show that there is a reasonable probability that the
error affected the outcome of the district court proceeding. United States v. Wood,
430 F.3d 1323, 1326 (11th Cir. 2005). If an uncertainty exists, the appellant has
not carried his burden to show that the error affected his substantial rights. See id.
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After United States v. Booker, 543 U.S. 220, 125 S. Ct 738 (2005), we
established a two-part process for district courts to use in calculating sentences.
United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). First, the district
court must consult and correctly calculate the range recommended by the
Sentencing Guidelines. Id. Second, the district court must fashion a reasonable
sentence by considering the factors enumerated in § 3553(a). Id.
Under U.S.S.G. § 7B1.1, there are three grades of supervised release
violations. The two that are pertinent to this case are the following:
(2) Grade B Violations--conduct constituting any other federal, state,
or local offense punishable by a term of imprisonment exceeding one
year;
(3) Grade C Violations--conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment of one year or
less; or (B) a violation of any other condition of supervision.
U.S.S.G. §7B1.1(a). Upon revocation of supervised release, guideline section
7B1.4 provides the recommended ranges of imprisonment. See U.S.S.G. §7B1.4.
When a grade B violation of supervised release is coupled with an original
criminal history category of VI, the applicable guideline range is 21 to 27 months’
imprisonment. Id. However, when the offense that resulted in the term of
supervised release was a class C felony, the statutory maximum sentence for
revocation of supervised release is 24 months’ imprisonment. 18 U.S.C.
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§ 3583(e)(3). When a grade C violation is coupled with a criminal history category
of VI, the applicable guideline range is 8 to 14 months’ imprisonment. U.S.S.G.
§7B1.4(a).
Under the Alabama Code, a person’s fourth DUI conviction shall be
punished by, among other things, a term of “imprisonment of not less than one
year and one day nor more than 10 years.” Ala. Code § 32-5A-191(h). The Code
then provides that “[a] prior conviction within a five-year period for driving under
the influence of alcohol or drugs . . . shall be considered by a court for imposing a
sentence pursuant to this section.” Ala. Code § 32-5A-191(o). In Hankins v. State,
the Alabama Court of Criminal Appeals held that Ala. Code § 32-5A-191(o)
“restricted the use of prior DUI convictions for sentencing purposes to only those
convictions that occurred within the five-year period immediately preceding the
current conviction.” Hankins v. State, __ So.2d __, ___, CR-06-0310 (Ala. Crim.
App. Sep. 28, 2007). Thus, a person with no DUI convictions within a five-year
period preceding the conviction may not be sentenced to more than one year of
imprisonment. Ala. Code. § 32-5A-191(e).
In this case, the government concedes that there was an error that was plain
because the district court calculated Salter’s guideline imprisonment range as 21 to
24 months instead of 8 to 14 months. However, we conclude that Salter has not
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shown that there is a reasonable probability that his sentence would have been
different had the sentencing judge correctly calculated the advisory guideline
range. Accordingly, we affirm the sentence because Salter has not satisfied his
burden under the third prong of the plain error standard.
AFFIRMED.
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