United States v. Eric Carmouche

DeMOSS, Circuit Judge, specially

concurring:

The members of 'the panel are. in agreement that we have appellate jurisdiction to consider the merits of Carmouche’s appeal because his November 18 motion suspended FRAP 4(b)’s. ten-day time period for filing an appeal .until such time as the district court ruled oh that motion. We disagree, however, about why Carmouche’s motion had that effect. My colleagues have written separately to emphasize that they feel reluctantly bound by this Court’s unpublished disposition in United States v. Moya, No. 94-10907, 66 F.3d 319 (5th Cir. July 25, 1995). They have urged the en banc Court to reconsider its precedent in Moya. I write separately because I do not read Moya to decide any bold new issue of law that requires the Court’s en banc attention. Rather, Moya is premised upon sound Fifth Circuit authority, authority which I believe to be rightly decided and which I am not inclined at this juncture to question.

FRAP 4(b) AND THE HEALY DOCTRINE

Federal Rule of Appellate Procedure 4(b) provides that an appeal must be filed within ten days after the entry of judgment. Fed. R.App. P. 4(b). That time period can be suspended, however, by the timely filing of certain post-judgment motions within the time period allowed for the filing of a notice of appeal. FRAP 4(b) includes a list of rule-based motions that effectively suspend the ten-day time period for filing an appeal. Id. In addition to those rule-based motions listed in FRAP 4(b), the Supreme Court allows a common law “motion for reconsideration” to *1019suspend the time period for filing an appeal in a criminal matter. E.g., United States v. Healy, 376 U.S. 75, 78-82, 84 S.Ct. 553, 556-57, 11 L.Ed.2d 527 (1964). The Healy doe-, trine is applied notwithstanding the absence of any statutory or rule-based authority for allowing the judicially created motion for reconsideration to have a suspensory effect. United States v. Dieter, 429 U.S. 6, 7-9 & n. 3, 97 S.Ct. 18, 19-20 & n. 3, 50 L.Ed.2d 8 (1976); Healy, 376 U.S. at 78-80, 84 S.Ct. at 556; United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir.1995), corrected without substantive change, 60 F.3d 1142 (5th Cir. 1995); United States v. Greenwood, 974 F.2d 1449, 1466-(5th Cir.1992). Rather, Supreme Court decisions premise the Healy doctrine upon long-standing criminal practice and the judicial efficiency achieved by allowing the district court to correct possible errors prior to a time consuming and potentially unnecessary appeal. Dieter, 429 U.S. at 7-9, 97 S.Ct. at 19-20; Healy, 376 U.S. at 78-80, 84 S.Ct. at 556; Greenwood, 974 F.2d at 1466-67.

Our Court has been “quite permissive about what qualifies as a ‘motion for reconsideration.’” Id. at 1466. When making that determination, the suspensory effect of a particular motion does not depend upon the caption selected by the movant. E.g., Dieter, 429 U.S. at 7-8, 97 S.Ct. at 19 (“[i]t is true that the Government’s post-judgment dismissal motion was not captioned a ‘petition for rehearing,’ but there can be no doubt that in purpose and effect it was precisely that”); Moya, No. 94-10907 at 3-4, 66 F.3d 319 (5th Cir. July 25, 1995) (construing criminal defendant’s Rule 35(c) motion to be a motion for reconsideration); Greenwood, 974 F.2d at 1465-66 (construing government’s motion for resentencing to be a motion for reconsideration). To the contrary, “any request, however phrased, that a district court reconsider a question decided in the case in order to effect an alteration of the rights adjudicated,” should be construed as a motion for reconsideration. Greenwood, 974 F.2d at 1465-66 (internal quotations and alterations omitted); see also United States v. Ibarra, 502 U.S. 1, 7, 112 S.Ct. 4, 7, 116 L.Ed.2d 1 (1991); Dieter, 97 S.Ct. at 19-20, 429 U.S. at 7-9.

MOYA APPLIES ESTABLISHED PRECEDENT

I do not read Moya to hold that a motion filed under Federal Rule of Civil Procedure 35(c) suspends the appellate timetable. Instead, Moya rejects the Rule 35(c) caption employed by the defendant and construes the defendant’s motion to be a common law motion for reconsideration. Moya then applies the well-established Healy doctrine to permit the defendant’s motion for reconsideration to have a suspensory effect on FRAP 4(b)’s time period. As demonstrated above, Moya’s rejection of the caption selected by the defendant and its liberal construction of the subject motion as a motion for reconsideration are well supported by existing precedent.

FRAP 4(b) was amended in 1993 to add a list of motions that are capable of having a suspensory effect on the ten-day time period for filing an appeal. My colleagues find significance in the fact that Carmouche’s motion is not among those listed in FRAP 4(b). But our application of the Healy doctrine is not derived from or dependent upon any rule-based or statutory authority. Dieter, 429 U.S. at 9 n. 3, 97 S.Ct. at 19 n. 3; Healy, 376 U.S. at 78-80, 84 S.Ct. at 556; Brewer, 60 F.3d at 1144; Greenwood, 974 F.2d at 1466. We have therefore held that the 1993 amendment to FRAP 4(b) does not prevent us from permitting a common law motion for reconsideration of a type not articulated in FRAP 4(b) to have a suspensory effect on the appellate time table. E.g., Brewer, 60 F.3d at 1143-44.

Neither is this the first time that our Court has applied the Healy doctrine to a criminal defendant’s request for reconsideration of a sentencing decision. See Greenwood, 974 F.2d at 1464r-71. Even United States v. Morillo, 8 F.3d 864 (1st Cir.1993), which my colleagues cite as guiding extra-circuit authority, begins its analysis with an inquiry to determine whether the defendant’s motion, styled in that case as a “motion to correct sentence,” is in substance a motion for reconsideration, or instead, a motion properly brought under Federal Rule of Civil Procedure 35(c). Id. at 867-68. Relying upon the “numerical” nature of the error alleged, the Court construed the relief requested to be within the ambit of Rule 35(c). Id. at 868.

*1020I have' no problem concluding in this case that Carmouehe’s motion is, in subject and effect, a motion for reconsideration of the district court’s sentencing decisions. Rule 35(c) is intended to redress technical or obvious sentencing error that is so clear that the case would “almost certainly be remanded” for correction. Fed. R.Crim. P. 35(c) advisory committee note. Rule 35(c) is not an appropriate vehicle for requesting that the district court reconsider its application or interpretation of the sentencing guidelines. Id. (Rule 35(c) “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence”).

Carmouche’s motion presents several arguments, most of which were argued to the district court and rejected at sentencing. Carmouche’s request that the district court apply Rule 35(c) to lower his sentence based upon substantive errors argued at sentencing is inappropriate. The errors Carmouche identified are neither technical nor inádver-tent, but instead reflect the considered judgment of the district court that Carmouche was not entitled to relief. Carmouehe’s motion is appropriately construed as a request that .the district court reconsider its sentencing decisions. That being the case, there is no need in this ease to decide, as the First Circuit did in Morillo, whether a Rule 35(c) motion can or should suspend FRAP 4(b)’s ten-day time period.

Moya does nothing more than construe Carmouche’s sentencing motion to be a motion for reconsideration, which suspended the time for filing an appeal until the district court decided the motion. Such motions have been liberally construed to suspend the time for filing an appeal, without regard to the caption selected by the parties, and without regard to whether the relief requested falls within the scope of those motions listed in FRAP 4(b). I conclude that Moya is premised upon sound authority and does not by itself create any new or objectionable rule of law.

GREENWOOD CONTROLS-THE REAL ISSUE

The real sticking point in this case is the possible tension between the district court’s •limited authority to either grant or deny a defendant’s postrjudgment sentencing motion and this Court’s authority under the Healy doctrine to permit a motion requesting such relief to suspend the ten-day time period for filing an appeal.

The district court’s jurisdiction to correct a sentence pursuant to Rule 35(c) ends seven days after judgment is entered. See United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir.1997); United States v. Lopez, 26 F.3d 512, 518-20 (5th Cir.1994) (both holding that Rule 35(c)’s seven day time limit for action by the district court is jurisdictional). However,' and although neither the government nor my colleagues raise this point, the district court’s authority to correct an erroneous sentence is also limited by statute. See 18 U.S.C. § 3582. Neither Rule 35(c) nor 18 U.S.C. § 3582 authorize the district court’s order denying Carmouehe’s post-judgment sentencing motion. Thus it is clear that the district court lacked authority, and perhaps jurisdiction, to decide Carmouche’s motion when it was denied on January 22.1

There is a distinction, however, between the district court’s authority to either grant or deny Carmouche’s motion, and our authority under the Healy doctrine to permit that motion a suspensory effect. My colleagues would follow the First Circuit’s lead in Mor-illo by holding that the district court’s authority to correct an erroneous sentence is necessarily coextensive with the suspensory effect given a motion for reconsideration of sentencing issues. My response is that we considered and rejected that precise contention in United States v. Greenwood, 974 F.2d 1449 (5th Cir.1992).

Greenwood grappled with the relationship between the district court’s authority to grant the subject sentencing motion and this Court’s application of the Healy• doctrine. The Court expressly avoided deciding whether the district court had any “inherent” authority to correct a sentence, and held instead that simple application of the Healy doctrine rendered any inquiry into the extent *1021of the district court’s corrective powers unnecessary. Greenwood, 974 F.2d at 1470-72. Thus, the Court recognized that the scope of the district court’s corrective powers and the suspensory effect that Supreme Court authority permitted a common law motion for reconsideration are distinct. Id. As a result, Greenwood applied the Healy doctrine notwithstanding an apparently valid contention that the district court lacked continuing authority to grant or deny the motion that was permitted to have suspensory effect. Id. at 1470-71; United States v. Carr, 932 F.2d 67 (1st Cir.1991) (holding that a timely motion for reconsideration suspends the time period for filing an appeal until the motion is decided, without regard to whether the district court retains authority to correct the sentence as requested).2

MORILLO IS INCONSISTENT WITH GREENWOOD

Morillo, which my colleagues now urge upon the en banc Court, takes a contrary view. In Morillo, the First Circuit concluded that Rule 35(c) motions should be accorded a suspensory effect, but that the appellate time period would begin to run again at the expiration of seven days after entry of judgment, rather than when the district court decided the motion. See Morillo, 8 F.3d at 869. That holding in Morillo equates the district court’s jurisdiction to grant or deny a particular motion with the effect that motion will have on FRAP 4(b)’s appellate timetable. Id. Thus, Morillo’s holding is in direct conflict with this Circuit’s authority in Greenwood. I conclude that Greenwood, and its holding that our authority under Healy can be distinguished from the district court’s authority to grant the relief requested, presents the principal source of disagreement in this case. For the sake of clarity, any reconsideration of the issues raised by this case should focus upon Greenwood, which artieu-lates at length the basis of its holding, rather than Moya, which merely applies the rule.

Neither am I persuaded that Greenwood is wrongly decided. My colleagues cite Ibarra for the proposition that the Court should adopt a “bright-line rule” that any motion filed under a Rule 35(c) caption is ineffective to suspend the time period for filing an appeal more than seven days past judgment. But the “bright-line” rule announced in Ibar-ra, and invoked in Greenwood, requires liberal construction of any post-judgment pleading that comes close to requesting reconsideration of a question decided in the case as a common law motion for reconsideration that is effective to suspend FRAP 4(b)’s time period. Ibarra, 502 U.S. at 6-7, 112 S.Ct. at 6-7; Greenwood, 974 F.2d at 1466-67.

The Supreme Court has emphasized that when making that liberal construction, we are not bound by the caption selected by the parties, and should examine the substance of the motion filed to determine whether the relief requested fits within the framework of a common law motion for reconsideration. E.g., Dieter, 429 U.S. at 7-9, 97 S.Ct. at 19-20. Clearly, the Court is not free to condone an approach that would effectively circumvent Rule 35(c) by construing every Rule 35(c) motion to be a common law motion for reconsideration. But I fail to see how the language cited by my colleagues, which reads as a command to liberally construe post-judgment pleadings to achieve the judicial efficiency justifying the Healy doctrine, can be used as a sword to deny appellate review because counsel has selected the wrong caption for the motion.

Litigants have no control over when or if the district court will decide a pending post-judgment motion. The “bright-line” rule established by the Supreme Court accords a post-judgment motion suspensory effect whenever it requests reconsideration of a question decided at trial that will effect an *1022alteration of the rights adjudicated. Ibarra, 502 U.S. at 6-7, 112 S.Ct. at 7; Dieter, 429 U.S. at 7-9, 97 S.Ct. at 19-20; Greenwood, 974 F.2d at 1466-67. I do not agree that denying review in a criminal case because there is a debatable issue about whether the district court’s jurisdiction may have expired before it decided a pending motion that would otherwise suspend the time for filing an appeal will serve to “protect” the interests of the parties. I would therefore adhere to the Court’s holding in Greenwood.

. The Court has not clearly resolved whether the limitations specified in 18 U.S.C. § 3582 are exclusive and jurisdictional. See Lopez, 26 F.3d at 515 n. 3.

. Ibarra is consistent with this approach. In that case, the government appealed the district court’s adverse ruling on a motion to suppress drugs. Ibarra, 502 U.S. at 3, 112 S.Ct. at 4-5. The government originally sought to justify the objectionable search on a theory of continuing consent, but abandoned that theory in subsequent pleadings. Id. The government attempted to revive the continuing consent theory in a timely filed motion for - reconsideration. Id. The Tenth Circuit held that a motion for reconsideration premised upon a disavowed theory is ineffective to suspend the time period for filing an appeal. Id. at 5-6, 112 S.Ct. at 6. The Supreme Court rejected that analysis, holding that the likelihood of success on the merits is immaterial to the Healy doctrine’s "bright-line” approach. Id. at 5-7, 112 S.Ct. at 6-7.