FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 31, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-3252
(D.C. No. 6:93-CR-10036-MLB-1)
v. (D. Kansas)
DARNELL REEVES,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Defendant and appellant, Darnell Reeves, appeals from the denial of his
Fed. R. Crim. P. 35(a) motion to correct his allegedly “illegal” sentence. For the
following reasons, we affirm the district court’s dismissal of this case.
On August 13, 1993, Mr. Reeves pled guilty, pursuant to a plea agreement,
to the distribution of approximately 611 grams of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2.
In preparation for sentencing under the United States Sentencing
Commission, Guidelines Manual (“USSG”), the United States Probation Office
prepared a presentence report (“PSR”). After various adjustments, the PSR
calculated a total offense level of 35. The PSR then increased Mr. Reeves’
offense level to 37, based on his being classified as a career offender because he
had “at least two prior felony convictions involving crimes of violence.” PSR at
¶ 31. 1 After a reduction for acceptance of responsibility, Mr. Reeves’ final total
offense level was 34. With a criminal history category of VI, both because he
was classified as a career offender and because he had amassed fourteen criminal
history points, the Guidelines advisory sentencing range was 292 to 365 months.
A ten-year statutory mandatory minimum sentence was also applicable. 21
U.S.C. § 841(b)(1)(A). Mr. Reeves was sentenced to 365 months’ imprisonment.
1
In fact, the adjusted offense level of 37 was not used in calculating Mr.
Reeves’ sentence, because he was already subject to the higher offense level of
38.
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Mr. Reeves filed a direct appeal, in which we affirmed his sentence.
United States v. Reeves, 46 F.3d 1152 (10th Cir. 1995) (unpublished). He also
filed a petition pursuant to 28 U.S.C. § 2255, which the district court denied.
Our court then declined to grant Mr. Reeves a certificate of appealability to
appeal the denial and dismissed his case. United States v. Reeves, 125 F.3d 864
(10th Cir. 1997) (unpublished). Mr. Reeves, represented by appointed counsel,
subsequently filed a motion for a reduction in his term of imprisonment, pursuant
to 18 U.S.C. § 3582(c)(2). That was denied. Mr. Reeves then filed an identical
motion, proceeding pro se, which was also denied. His motion for
reconsideration was then denied.
Finally, on August 13, 2012, Mr. Reeves filed the instant pro se motion for
the correction of an allegedly “illegal” sentence under Fed. R. Crim. P. 35. He
sought to remove his classification as a career offender, on the ground that his
sentences on two of his prior felonies were imposed concurrently and on the same
day and by the same judge, and therefore should only count as one offense. Mr.
Reeves further averred that two of his prior convictions were “invalid” under the
Guidelines. Based on these claimed errors, Mr. Reeves argues that his criminal
history points should be reduced from eleven to five, and his criminal history
category should be reduced from VI to III.
Rule 35 provides in pertinent part as follows: “Within 14 days after
sentencing, the court may correct a sentence that resulted from arithmetical,
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technical, or other clear error.” Fed. R. Crim. P. 35(a). 2 “Rule 35 allows a short
window to correct sentencing error.” United States v. McGaughey, 670 F.3d
1149, 1155 (10th Cir. 2012). The court’s authority to correct a sentence under
Rule 35 “‘was intended to be very narrow and to extend only to those cases in
which an obvious error or mistake had occurred.’” United States v. Lonjose, 663
F.3d 1292, 1299 n.7 (10th Cir. 2011) (quoting United States v. Green, 405 F.3d
1180, 1185 (10th Cir. 2005)). We recently stated that, after careful review of our
case law, relevant Supreme Court authority and the case law of other circuits,
“[w]e join the other circuits in holding that Rule 35(a)’s 14-day time limit is
jurisdictional. Thus, we find the district court had no jurisdiction to rule on
[defendant’s] Rule 35(a) claim past the 14-day limit.” Id. at 1158; see also
Green, 405 F.3d at 1185 (stating that the 14-day time limit established by Rule 35
is jurisdictional).
In denying Mr. Reeves’ Rule 35(a) motion, the district court stated, after
quoting the 14-day time limit, that, “Defendant was sentenced in 1993.
Accordingly, the court has no jurisdiction inherent or otherwise, to correct
defendant’s sentence which, in any event, was and is entirely legal.” Order at 1,
R. Vol. 2 at 106. We agree with the district court’s assessment.
2
Rule 35(a) formerly included a seven-day deadline; this was extended to
fourteen days in 2009.
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Mr. Reeves argues that we should recognize some grounds for equitable
tolling, or some other form of waiver or estoppel, to allow him to bring his
motion some nineteen years after his sentence was imposed. A non-jurisdictional
time limit, unlike a jurisdictional time limit, may be subject to waiver, estoppel
or equitable tolling. See Monreal v. Potter, 367 F.3d 1224, 1231 (10th Cir. 2004);
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Mr. Reeves cites a number of district court cases from other jurisdictions in
which he claims the court permitted an otherwise untimely motion to be brought.
Those cases, however, involve petitions under 28 U.S.C. § 2255, which contains a
non-jurisdictional one-year time limit and, as such, is subject to equitable tolling.
See Miller, 141 F.3d at 978. His cited authorities therefore provide no support for
Mr. Reeves’ claim that his motion should be subject to equitable tolling or some
other basis for allowing his otherwise untimely motion.
In sum, we agree with the district court that it lacked jurisdiction to rule on
Mr. Reeves’ Rule 35(a) motion to reduce his sentence. AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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