FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
December 2, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
___________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-3257
CHESTER RANDALL, JR.,
Defendant-Appellant.
___________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:07-CR-10143-JTM-6)
____________________________________
Chester Randall, Jr., pro se.
____________________________________
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.*
____________________________________
BALDOCK, Circuit Judge.
____________________________________
A federal jury convicted Defendant of conspiracy to participate in a racketeer
influenced and corrupt organization, in violation of 18 U.S.C. § 1962(d). The district
court sentenced Defendant in May 2010. Defendant’s prior convictions yielded six
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
criminal history points. The sentencing guidelines imposed an additional criminal history
point because Defendant “committed the instant offense less than two years after release
from imprisonment” on a qualifying sentence.1 U.S.S.G. § 4A1.1(e) (2009). This
additional criminal history point raised Defendant from criminal history category III to
category IV. Based on an offense level of 19, Defendant’s guideline range was 46 to 57
months under criminal history category IV. His range would have been 37 to 46 months
under category III. The district court sentenced Defendant to 46 months, the low end of
the applicable guideline range. Defendant’s counsel filed a notice of appeal from
Defendant’s conviction and sentence within the fourteen-day filing period. See Fed. R.
App. P. 4(b)(1)(A). This court affirmed Defendant’s direct appeal on November 1, 2011.
United States v. Randall, --- F.3d ---, 2011 WL 5148862 (10th Cir. 2011).
Meanwhile, Amendment 742 to the sentencing guidelines took effect in November
2010. U.S.S.G. App. C, amend. 742 (effective Nov. 1, 2010). Amendment 742
eliminated recency points under § 4A1.1. Three weeks later, Defendant filed a pro se
“Motion to Modify Sentence Pending Appeal.” Defendant argued that Amendment 742
should be applied retroactively to reduce his sentence to 37 months.2 Although
1
Defendant received one recency point, rather than two, because he had already
received a two-point increase under § 4A1.1(d) for committing the offense while on
parole. See U.S.S.G. § 4A1.1(e) (2009).
2
Defendant referred in his motion to “Amendment 5,” but the district court
recognized that Defendant was actually referring to Amendment 742. Amendment 742
was the fifth amendment listed in the sentencing commission’s May 2010 submission to
Congress, which may explain Defendant’s confusion. See U.S. Sentencing Commission,
“Amendments to the Sentencing Guidelines, May 3, 2010,” http://www.ussc.gov/Legal/
Amendments/Reader-Friendly/20100503_RFP_Amendments.pdf
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Defendant did not reference the statute, 18 U.S.C. § 3582(c)(2) allows a motion to
modify a sentence when a defendant’s sentencing range “has subsequently been lowered
by the Sentencing Commission.” The district court concluded, however, that it had no
jurisdiction to consider Defendant’s motion because his notice of appeal from his
conviction divested the court of jurisdiction over the case. The court cited United States
v. Disasio, 820 F.2d 20, 23 (1st Cir. 1987), which said “the sentencing court is without
jurisdiction to rule on a motion for reduction of sentence once a notice of appeal has been
docketed.” The district court also concluded that, even if no appeal were pending, it
would have no authority to reduce Defendant’s sentence. This was because “[a]
guideline amendment is applied retroactively only when it has been specifically listed
among the retroactive amendments identified in USSG § 1B1.10(c),” and Amendment
742 is not listed in § 1B1.10(c).
The district court entered its order denying Defendant’s motion to modify his
sentence on January 6, 2011. Defendant moved for reconsideration of that order on
March 16, 2011. Defendant argued the motion to modify sentence was not related to his
earlier appeal. He also argued the court was wrong to conclude that he “cannot challenge
some aspects of his Sentence here while simultaneously attacking other aspects of his
sentence in the Court of Appeals.” On August 1, 2011, the district court entered an order
denying Defendant’s motion for reconsideration because “it simply offers a repetition of
the arguments previously addressed to, and rejected by, the court.” The district court did
not discuss the timeliness of Defendant’s motion. On August 29, 2011, Defendant filed a
notice of appeal, which said, “Comes now defendant to notice this court that I am filing
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an appeal of this court’s Memorandum And Order of 29 July, 2011; received on 15 Aug,
2011.”3
Defendant’s appeal is now before us for review.4 The first question we address is
whether Defendant timely filed his notice of appeal to this court. If so, the second
question is whether the district court properly denied Defendant’s motion for
reconsideration. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.
We construe Defendant’s motion for modification of his sentence as a motion
brought under 18 U.S.C. § 3582(c)(2). The motion therefore addresses a criminal matter,
the appeal of which is governed by Fed. R. App. P. 4(b). United States v. Espinosa-
Talamantes, 319 F.3d 1245, 1246 (10th Cir. 2003). A criminal defendant must file a
notice of appeal within fourteen days of the judgment or order being appealed. Fed. R.
App. P. 4(b)(1)(A). Unlike in civil cases, a timely appeal in a criminal case is not
jurisdictional, but rather an “inflexible claim-processing rule.” United States v. Garduño,
506 F.3d 1287, 1291 (10th Cir. 2007). Thus, a criminal defendant’s failure to file a
timely notice of appeal does not deprive us of jurisdiction. Nevertheless, “the time bar in
3
Although the district court’s order was dated July 29, 2011, it was entered on
August 1, 2011, which is when the fourteen-day period for filing a notice of appeal began
to run. Fed. R. App. P. 4(b)(A)(i).
4
The clerk of this Court instructed Defendant to file a certificate of appealability
along with his appeal in the event we classified this case as one brought under 28 U.S.C.
§ 2255. An appeal can only be taken from a final order in a § 2255 proceeding if we
issue a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). This case, however,
addresses a motion under 18 U.S.C. § 3582, which is distinct from a
§ 2255 claim. United States v. Chavez-Salais, 337 F.3d 1170 (10th Cir. 2003). Thus, no
certificate of appealability is required.
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Rule 4(b) must be enforced by this court when properly invoked by the government.”
United States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008). We may raise Rule 4(b)’s
time bar sua sponte, but this power “is limited and should not be invoked when judicial
resources and administration are not implicated and the delay has not been inordinate.”
Id. at 750.
Here, Defendant filed his notice of appeal on August 29, 2011, twenty-eight days
after the district court entered its order denying the motion for reconsideration on August
1, 2011. The notice was therefore untimely.5 Nevertheless, an untimely notice of appeal
does not always require dismissal. Rule 4(b) allows a district court to extend the filing
period for an additional thirty days “[u]pon a finding of excusable neglect or good
cause.” Fed. R. App. P. 4(b)(4). Defendant did not request an extension, but “a
defendant who filed his notice of appeal within the Rule 4(b) thirty-day extension period
may obtain relief by showing excusable neglect notwithstanding his failure to file a
motion seeking such relief within that same time frame.” United States v. McMillan, 106
F.3d 322, 324 (10th Cir. 1997). “In most cases, the appropriate remedy is to remand the
case to the district court so that the court can determine if the requisite showing for a
thirty-day extension of time can be made.” Espinosa-Talamantes, 319 F.3d at 1246.
Defendant stated in his notice of appeal that he received the order denying his motion to
5
The Government did not file a response brief in this appeal because Defendant
filed an application for a certificate of appealability. See supra n. 4. Under Tenth Circuit
Rule 22.1, the Government is instructed not to file a brief in response to an application
for a certificate of appealability until requested to do so by the Court. 10th Cir. R. 22.1.
Consequently, the Government had no opportunity to raise the untimeliness of
Defendant’s appeal.
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reconsider on August 15, 2011, the day Rule 4(b)’s fourteen-day time period expired. If
this statement is true, Defendant may be able to show good cause for his delay. Because
Rule 4(b) is not jurisdictional, we exercise our discretion to consider Defendant’s appeal.
Mitchell, 518 F.3d at 751. Therefore, we need not remand for a determination of whether
Defendant had good cause for delay.
II.
The district court denied Defendant’s motion for reconsideration because
Defendant failed to show grounds for reconsideration, such as a change of controlling law
or clear error. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
We review the district court’s denial of a motion for reconsideration for abuse of
discretion. United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004). We
affirm the district court’s decision, but on a different basis.
Although the Federal Rules of Criminal Procedure do not authorize a motion for
reconsideration, “motions to reconsider in criminal prosecutions are proper.” United
States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010). The Supreme Court has recognized
motions for reconsideration in criminal proceedings at least since United States v. Healy,
376 U.S. 75, 77–78 (1964). The Court has subsequently noted the “wisdom of giving
district courts the opportunity promptly to correct their own alleged errors.” United
States v. Dieter, 429 U.S. 6, 8 (1976). Although the Supreme Court has only addressed
motions to reconsider filed by the Government, we have recognized that criminal
defendants may also move for reconsideration. See United States v. Miller, 869 F.2d
1418, 1421 (10th Cir. 1989).
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Motions for reconsideration, however, cannot be brought at simply any time. If
they could, criminal proceedings might never end. Because motions to reconsider in
criminal cases are not grounded in a rule or statute, the time limits are not well
established. Our circuit has only addressed the timeliness of a motion to reconsider in
one case. In Miller, the district court denied a defendant’s motion for new trial under
Fed. R. Crim. P. 33. Miller, 869 F.2d at 1419. A year and a half later, the defendant
moved to reconsider the denial of the Rule 33 motion, and the district court granted a new
trial. Id. We held that “a motion to reconsider the denial of a new trial under Fed. R.
Crim. P. 33” must be filed within the time allotted for appeal under Fed. R. App. P. 4(b).
Although Miller’s holding does not address the facts of this case, it undoubtedly supports
our conclusion that we must set time limits on a motion to reconsider a court’s decision
on a § 3582(c)(2) motion.
The Fourth Circuit addressed a case similar to this one where a prisoner moved to
modify his sentence under 18 U.S.C. § 3582(c)(2). United States v. Goodwyn, 596 F.3d
233 (4th Cir. 2010). The district court granted the defendant’s motion in part, and
reduced Defendant’s sentence by twenty-four months. Id. at 234. Almost eight months
later, the defendant asked for a further reduction. Id. The district court construed this
request as a motion for reconsideration, which it granted, and the court reduced the
defendant’s sentence an additional twenty-four months. Id. The Fourth Circuit held that
the district court had no authority to grant the second sentence reduction. The court said:
When the Sentencing Commission reduces the Guidelines range applicable
to a prisoner’s sentence, the prisoner has an opportunity pursuant to
§ 3582(c)(2) to persuade the district court to modify his sentence. If the
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result does not satisfy him, he may timely appeal it. But he may not, almost
eight months later, ask the district court to reconsider its decision.
Id. at 236.
The Seventh Circuit considered a similar situation in United States v. Redd, 630
F.3d 649 (7th Cir. 2011). There, the district court granted a motion under
§ 3582(c)(2) and reduced the defendant’s sentence by seventy-eight months. Id. at 650.
Ten months later, the defendant moved for reconsideration of the district court’s decision.
The Seventh circuit held that “[o]nly a motion filed within the time for appeal acts as a
genuine request for reconsideration.” Id. We agree with the Fourth and Seventh Circuits,
and hold that a motion for reconsideration of the denial of a § 3582(c)(2) motion must be
brought within the time for appeal.
The same considerations that justify limiting the time to appeal—such as judicial
efficiency and the finality of criminal sentences—also justify limiting the time to seek
reconsideration in the district court. Mitchell, 518 F.3d at 747. If legitimate grounds for
setting aside a conviction or sentence arise within a year, they can be brought under 28
U.S.C. § 2255. But a district court’s ruling on a § 3582(c)(2) motion should not be open
for reconsideration indefinitely. If it were, defendants could circumvent Rule 4(b). A
defendant who received an adverse order could let the time to appeal pass, but later move
for reconsideration. Thus, the defendant could appeal the court’s decision on the
reconsideration motion and thereby obtain appellate review of the original order, despite
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failing to comply with Rule 4(b).6 This would essentially negate Rule 4(b)’s requirement
of a timely appeal. Thus, a motion to reconsider an order granting or denying a sentence
modification under § 3582(c)(2) must be brought within the time granted to appeal that
order. Here, the district court entered its order on January 6, 2011. Defendant filed his
motion for reconsideration on March 16, 2011, fifty-five days after the period for appeal
ended on January 20, 2011. Because Defendant’s motion to reconsider was untimely, the
district court properly denied the motion.7
AFFIRMED.
6
We review both the denial of a § 3582(c)(2) motion and the denial of a motion
for reconsideration for abuse of discretion. United States v. Sharkey, 543 F.3d 1236,
1238 (10th Cir. 2008); Barajas-Chavez, 358 F.3d at 1266.
7
Defendant’s motion was also untimely under the district court’s local rules,
although the district court did not address timeliness. The District of Kansas specifically
requires motions to reconsider non-dispositive orders to be filed “within 14 days after the
order is filed unless the court extends the time.” D. Kan. R. 7.3(b).
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