UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-10169
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN BREWER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(July 14, 1995)
Before DAVIS and JONES, Circuit Judges, and MAHON*, District
Judge.
EDITH H. JONES, Circuit Judge:
Steven Brewer appeals from his guilty plea judgment and
sentence imposed by the district court on December 16, 1993 for
making a false statement to a federal agency in connection with
obtaining a $89,000 home loan. On December 28, 1993, Brewer
filed a "Motion for New Trial and/or Motion for Reconsideration."
The district court denied the motion on February 8, 1994. Notice
of appeal was filed on February 16, 1994. Because the notice of
appeal was not filed within ten days after the entry of judgment,
*
District Judge of the Northern District of Texas, sitting by
designation.
this court, sua sponte, sought supplemental briefing on the
question whether we have appellate jurisdiction. Under our prior
holdings, a "timely" motion to reconsider would have tolled the
10-day period for filing notice, but here the potential
application of two different rules of computation make it
arguable whether the motion was indeed timely. Having considered
the alternatives, we conclude that Fed. R. Crim. P. 45 governs
the computation of timeliness of a motion to reconsider and, by
that standard, Brewer's motion was timely. Reviewing the merits
of the appeal and finding no reversible error, we affirm.
Prior to 1993, Fed. R. App. P. 4(b), governing the time
period in which to file a notice of appeal in criminal cases,
listed several motions that, if timely made, toll the time to
appeal till after entry of an order denying the motion. However,
a motion for reconsideration, which is a judicial creation not
derived from statutes or rules, was not among the motions listed.
Nevertheless, this court held that criminal case motions for
reconsideration are timely if filed within the time prescribed
for noticing an appeal under Fed. R. App. P. 4(b) and, so filed,
they "destroy the finality" of the underlying judgment. United
States v. Cook, 670 F.2d 46, 48 (5th Cir.), cert. denied, 456
U.S. 982, 102 S.Ct. 2255 (1982). The court stated that "the
effect of a timely filed motion to reconsider is to extend the
time in which to appeal so that it begins to run when the motion
is denied." United States v. Lewis, 921 F.2d 563, 564-65 (5th
Cir. 1991) (citing United States v. Healy, 376 U.S. 75, 78, 84
2
S.Ct. 553, 555 (1964)). Thus, in essence, the court gave a
timely filed motion for reconsideration the same tolling effect
as the motions expressly addressed by Fed. R. App. 4(b).
In December 1993, Fed. R. App. P. 4(b) was amended,
adding to and setting forth somewhat more explicitly the motions
that when timely filed toll the time for appeal. Again motions
for reconsideration were not listed, raising the question whether
the amendment overruled or significantly altered the holding in
Cook. According to the Advisory Committee on Appellate Rules,
however, the changes in Rule 4(b) are merely grammatical, and
"[n]o substantive change is intended." Fed. R. App. P. 4(b),
Advisory Committee's Note. Without specifically discussing the
1993 amendment, the Eighth Circuit has continued to follow the
judicial rule that a timely motion for reconsideration tolls the
period to file an appeal. United States v. Ridl, 26 F.3d 73, 74
(8th Cir. 1994) ("government's motion for reconsideration
postponed the commencement of the thirty day period for appealing
[the judgment] until the motion for reconsideration had been
ruled upon."). Given that motions for reconsideration are a
creation of caselaw, not the Federal Rules, we conclude that a
change in Fed. R. App. P. 4(b) that does not expressly reject or
alter the results of that caselaw should not be read to reverse
it implicitly.
But that holding alone does not end the jurisdictional
inquiry in this case. Because of differences in the methods of
computation of time between Fed. R. Crim. P. 45 and Fed. R. App.
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P. 26(a), the question remains how to determine whether Brewer's
motion to reconsider was "timely filed" for purposes of Fed. R.
App. P. 4(b). Fed. R. Crim. P. 45 provides, in regard to
criminal proceedings in district court, that "[w]hen a period of
time prescribed or allowed is less than 11 days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in the
computation." On the other hand, Fed. R. App. P. 26(a),
governing computation under the Appellate Rules, states that
intermediate Saturdays, Sundays, and legal holidays are excluded
only "[w]hen the period of time prescribed or allowed is less
than 7 days." Brewer's motion was timely under Fed. R. Crim. P.
45 but not under Fed. R. App. P. 26(a).
In favor of applying Fed. R. Crim. P. 45, Brewer argues
that the motion for reconsideration is a proceeding in district
court and should be governed by the timeliness rules of the
district court. Brewer asserts that a motion to reconsider is
analogous to a motion for new trial, and that since Fed. R. Crim.
P. 45(a) governs the timeliness of a motion for a new trial, so
should it govern a motion for reconsideration. Fed. R. App. P.
4(b) itself tolls the period for filing a notice of appeal "[i]f
a defendant makes a timely motion specified immediately below, in
accordance with the Federal Rules of Criminal Procedure."
(Emphasis added). Of course, as discussed earlier, motions for
reconsideration are not among the motions specified in Fed. R.
App. P. 4(b) and since the 10-day period to file an appeal is
computed under Fed. R. App. P. 26(a), it could be argued that the
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timeliness of a motion for reconsideration should be determined
under the latter rule. Nonetheless, this court is mindful of the
confusion that could arise if Fed. R. App. P. 26(a), rather than
Fed. R. Crim P. 45, governed the counting of days for a motion
to reconsider; by applying each rule to a different set of post-
judgment criminal motions, the actual time for filing similar
motions governed by the same nominal 10-day period would
effectively be different. Moreover, since application of Fed. R.
App. P. 26(a) would lead to a shorter filing period, any
confusion its application might engender would disfavor
defendants. Accordingly, we conclude that timeliness of a
criminal defendant's motion to reconsider should be governed by
Fed. R. Crim P. 45. Brewer's motion was timely under that rule,
tolling the period for filing his appeal. His notice of appeal
was timely filed after the district court's order denying the
motion for reconsideration. Therefore, we have appellate
jurisdiction over Brewer's appeal.
Brewer raises three issues on appeal. First, he
contends that he received ineffective assistance of counsel
during the entry of the guilty plea and subsequent sentencing.
Brewer argues that but for the ineffective assistance, he would
not have pled guilty. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct.
366 (1985).
The plea agreement in this case, which is clear and
unambiguous, specifically negated the existence of any guarantees
about lenient sentencing and indicated that sentencing would be
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determined by the district court. The document expressly negated
the existence of any other agreements outside the written
document. Further, Brewer stated in the agreement that he and
his then attorney, Benjamin Durant, had thoroughly reviewed all
aspects of the case and that Brewer was fully satisfied with his
counsel's representation. The trial court found that the
affidavits by Brewer and Durant submitted in support of the
motion for reconsideration were merely conclusory, and were
unconvincing when compared with the clear and unambiguous
declarations in the plea agreement. We agree. Brewer has failed
to prove that his attorney's conduct with regard to the plea
agreement fell below an objective standard of reasonableness.
Similarly, Brewer's arguments alleging ineffectiveness
and prejudice because his counsel failed to make certain
objections at sentencing are without merit. Brewer notes that
the PSR represented the loss involved in his offense as $89,000,
that is, the full amount of the loan obtained through Brewer's
false statement. After auctioning the property acquired with the
loan, however, HUD actually incurred a loss of only $35,000.
Brewer contends his counsel should have objected to the PSI's use
of the higher amount. Even accepting this contention, we find no
prejudice resulted. Commentary to the Sentencing Guidelines
advises that in the case of fraudulent loan applications, the
loss is the actual loss to the victim or, where the intended loss
is greater, the intended loss. U.S.S.G. § 2F1.1, Application
Note 7(b). Applying this reasoning, we have found it proper to
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calculate loss based on the risk engendered by the defendant's
criminal conduct, even where the actual loss was lower. See,
e.g., United States v. Wimbish, 980 F.2d 312, 316 (5th Cir.
1992), cert. denied, 113 S.Ct. 2365 (1993). A district court's
determination of the amount of loss caused by fraud is given wide
latitude. United States v. Sowels, 998 F.2d 249, 251 (5th Cir.
1993), cert. denied, 114 S.Ct. 1076 (1994). Thus, even if
Brewer's counsel had objected to use of the full loan amount, it
would have been within the district court's discretion to use the
full amount as the loss. Moreover, even assuming the court would
have accepted the objection and used the lower amount of loss,
counsel's failure to make the objection cannot be said to have
seriously prejudiced Brewer. The two-point possible reduction in
base level arising from the lower loss amount would have caused
at best a six-month decrease in sentence range, and Brewer's 30-
month sentence would remain within the new range. Consequently,
we cannot say there is any probability that a lower sentence
would have resulted.
Brewer's other issues relating to counsel's
ineffectiveness at sentencing are equally unavailing. The PSR's
determination that Brewer's participation amounted to "more than
minimal planning" is clearly correct and in accordance with
U.S.S.G. § 1B1.1, Application Note 1(f). In addition, Brewer has
produced no evidence supporting his allegation that the PSR's
account of his criminal history was incorrect. In sum, Brewer's
ineffectiveness arguments must be rejected because he has failed
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to prove his counsel acted in other than an objectively
reasonable manner or that counsel's conduct resulted in actual
prejudice.
As his second error, Brewer contends that the district
court abused its discretion by refusing to allow him to withdraw
his guilty plea. Viewing the totality of the circumstances
before the district court, including that (1) Brewer failed to
allege actual innocence of the charge, (2) Brewer's initial plea
was made knowingly and voluntarily, and (3) lengthy delay would
result from allowing the withdrawal, we cannot find that the
district court abused its discretion in denying Brewer's motion
to withdraw his plea. United States v. Carr, 740 F.2d 339, 343-
44 (5th Cir. 1984), cert. denied, 471 U.S. 1004 (1985) (setting
out factors which district court should consider when ruling on
motion to withdraw guilty plea and holding that district court
ruling on withdrawal motion must be accorded "broad discretion").
Finally, Brewer argues that the trial court abused its
discretion in refusing to set a hearing on his motion for new
trial and/or reconsideration based upon "new facts." However,
Brewer failed to prove that his "new evidence" was unknown at the
time of his plea, was in fact newly discovered and that its
recent discovery was in no way attributable to a previous lack of
diligence. See United States v. Metz, 652 F.2d 478, 479-81 (5th
Cir. Unit A 1981). The district court did not abuse its
discretion by refusing to grant the requested hearing.
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For the foregoing reasons, the judgment and sentence of
the district court are AFFIRMED.
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