United States v. Bly

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 02-6034

ERIC WILLIAM BLY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 01-CV-892-A &
D.C. Crim. No. 96-CR-108-A)

Submitted on the briefs:

Eric William Bly, pro se.

Robert G. McCampbell, United States Attorney, Leslie M. Maye and Kim Kakish,
Assistant U.S. Attorneys, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.

KELLY , Circuit Judge.
 Defendant Eric William Bly timely appeals from an order modifying his

sentence on the government’s motion for reconsideration in this 28 U.S.C. § 2255

proceeding. See Fed. R. App. P. 4(a)(1), (4); Fed. R. Civ. P. 59(e); United States

v. Emmons , 107 F.3d 762, 764 (10 th Cir. 1997) (applying civil trial and appellate

rules to determine timeliness of notice of appeal from order disposing of Rule 59

motion in § 2255 proceeding). 1
We remand for further proceedings. 2

Following his conviction on numerous drug trafficking offenses, Bly was

sentenced to mandatory terms of life imprisonment based on both the quantity of

drugs involved and his prior drug offenses, pursuant to 21 U.S.C. § 841(b)(1)(A)

and § 851. On appeal, however, this court held that the government had failed to

prove Bly was in fact the man convicted of the prior offenses and, therefore, we

“vacate[d] Mr. Bly’s sentence and remand[ed] for resentencing de novo on this

issue.” United States v. Green , 175 F.3d 822, 836 (10 th Cir. 1999). On remand,

1
We reject the government’s argument that this appeal should be dismissed
as untimely under the much more restrictive rules governing criminal appeals.
The government chose to proceed by way of a civil motion for reconsideration
and, consistent with the authority cited above, Bly’s notice of appeal was timely
filed pursuant to Fed. R. App. P. 4(a) after that motion was decided. We decline
to recast the relevant procedural events after the fact in such a way as to cut off
appeal rights.
2
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

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the district court heard additional evidence tying Bly to the prior offenses and

reimposed the life sentences. We affirmed. United States v. Bly , No. 99-6287,

2000 WL 376628 (10 th Cir. filed Apr. 13, 2000).

In the meantime, the Supreme Court decided Apprendi v. New Jersey ,

530 U.S. 466 (2000), and Bly commenced this § 2255 proceeding challenging his

sentences because they rested on court-found facts which, under Apprendi , must

be determined by a jury. Lacking the authoritative guidance later provided by

United States v. Mora , 293 F.3d 1213, 1219 (10 th Cir.) (holding Apprendi does

not apply retroactively to collateral proceedings), cert. denied , 123 S. Ct. 388

(2002), the district court applied Apprendi and reduced Bly’s nine life sentences

to the twenty-year statutory maximum for an unenhanced drug offense on each

count, all to run concurrently. The government moved for reconsideration. The

district court did not retract its application of Apprendi but did hold that, pursuant

to United States Sentencing Guideline § 5G1.2(d) and this court’s decision in

United States v. Price , 265 F.3d 1097, 1108-09 (10 th Cir. 2001), cert. denied ,

122 S. Ct. 2299 (2002), the structuring of Bly’s separate sentences had to be

modified so that in aggregate they would match as far as possible the total

punishment prescribed for the relevant conduct determined at sentencing (i.e.,

a life sentence). See also United States v. Lott , 310 F.3d 1231, 1242-43 (10 th Cir.

2002), cert. denied , 2003 WL 558054 (U.S. Mar. 24, 2003) (No. 02-8948).

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Accordingly, the district court declared that Bly was “resentenced to twenty years

each on Counts 1, 9, 11, 13, 15, 17, 19, 46, and 54, to run consecutively, for a

total of 180 years.” R. doc. 1017 at 2. Bly then commenced this appeal.

Bly claims the sentence ultimately imposed still violates Apprendi ; he also

objects to the time and procedure of its imposition. His Apprendi claim is that

because the total-punishment benchmark used to implement § 5G1.2(d) derived

from facts not found by a jury, the district court violated Apprendi in the course

of correcting his sentence in the manner prescribed by Price and Lott . Even if we

could consider such an argument–regarding the proper application of Apprendi in

a collateral proceeding in which the defendant was not entitled to the benefit of

Apprendi at all–this circuit’s decisions in Price and Lott , interpreting § 5G1.2(d)

and explaining its implementation, are binding on us and foreclose Bly’s claim.

We are also not persuaded by Bly’s argument that the district court lacked

jurisdiction to act on the government’s motion for reconsideration. Bly insists the

motion was barred by the strict constraints on the court’s power to correct

sentences under Rule 35 of the Federal Rules of Criminal Procedure. As noted

above in connection with the question of our own jurisdiction, however, the

government’s motion to reconsider the initial sentence correction ordered in this

§ 2255 proceeding was properly considered, rather, under Rule 59 of the Federal

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Rules of Civil Procedure. 3
See Emmons , 107 F.3d at 764; see also United States

v. Moore , 83 F.3d 1231, 1233-34 (10 th Cir. 1996) (recognizing § 2255 as distinct

source of jurisdictional authority over sentencing matters and holding that, as to

questions of procedure, “Rule 35 is not a guide for 28 U.S.C. § 2255”). As such,

the motion was timely and afforded the district court jurisdiction to reconsider

and substantively amend its original decision.

Finally, Bly argues that, in any event, he had a right to be present when his

reduced sentence was reconsidered and increased from 20 years to 180 years of

imprisonment. This court has held on several occasions that a defendant must be

present whenever “the severity of the original sentence [i]s increased.” Mayfield

v. United States , 504 F.2d 888, 889 (10 th Cir. 1974); see United States v. Rourke ,

984 F.2d 1063, 1065-66 (10 th Cir. 1992) (following Mayfield ); United States v.

McCray , 468 F.2d 446, 451 (10 th Cir. 1972) (holding defendant must be present

for increase in sentence, but not for reduction). However, these cases were based

on Rule 43(a) of the Federal Rules of Criminal Procedure, and none involved the

correction of a sentence under § 2255–a context in which, as we have seen, the

operation of the criminal rules on sentencing is not a straightforward matter.

3
We emphasize that the initial action taken by the district court was simply a
mechanical reduction of sentence as requested by the defendant; it did not entail a
vacatur of sentence followed by a de novo resentencing proceeding. We need not
decide which rules would govern in the latter event.

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Of course, a defendant’s right to be present for sentencing has constitutional roots

as well. See, e.g., United States v. Alvarez-Pineda , 258 F.3d 1230, 1240-41

(10 th Cir. 2001); United States v. Townsend , 33 F.3d 1230, 1231 (10 th Cir. 1994).

But this suggests another complicating inquiry turning on the peculiar nature of

the ruling under review: is an attenuating correction of an initially favorable

§ 2255 remedial order, particularly a correction implementing a nondiscretionary

Guideline directive, properly equated with a “sentencing proceeding” for purposes

of constitutional strictures?

Had the district court vacated Bly’s sentences for de novo resentencing and

then imposed consecutive sentences under § 5G1.2(d), his rights would be clear.

When such an approach is followed to offset a sentence reduction obtained by the

defendant under § 2255, the process is properly deemed a sentencing proceeding.

Moore , 83 F.3d at 1235 (holding that, in resentencing after vacatur of sentence

under § 2255, defendant “stood in the position of a [convicted] defendant who

had . . . originally briefed the sentencing issues, and was awaiting sentence”);

see, e.g. , United States v. Easterling , 157 F.3d 1220, 1222-24 (10 th Cir. 1998);

United States v. Rudolph , 190 F.3d 720, 722 (6 th Cir. 1999). Admittedly, this

case is not as clear-cut, but absent authority distinguishing the constitutional and

Rule 43 precedent cited above and specifically holding that corrective,

non-discretionary increases to sentence may be summarily imposed in § 2255

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proceedings to offset previously granted reductions, we will not discount such

“a central principle of the criminal justice system” as a defendant’s right to be

present at sentencing. United States v. Torres-Palma , 290 F.3d 1244, 1248

(10 th Cir. 2002) (also noting violation of right is “ per se prejudicial”).

The government argues Bly is not entitled to relief on this claim for two

reasons. Neither is persuasive. First, the government notes Rule 43 specifically

excepts from its scope sentence corrections made pursuant to Rule 35, contends

the increase in Bly’s sentence is of the sort permitted by Rule 35(c), 4
and, in this

context, refers to its request for reconsideration as a “Rule 35 motion.” However,

the government specifically sought relief pursuant to Rule 59, see R. doc. 1006

(“Motion for Reconsideration,” which begins: “Pursuant to Rule 59(e) of the

Federal Rules of Civil Procedure, the Plaintiff-Respondent United States of

America, respectfully requests this Court to reconsider and amend its judgment

that was rendered in favor of Defendant-Movant Eric William Bly.”), and the

district court proceeded accordingly, see R. doc. 1017 (reciting government had

sought relief under Rule 59(e) and granting relief requested without mentioning

Rule 35). Again, we will not retroactively recast the proceedings and alter the

nature and consequences of procedural actions taken by the parties in the district

4
The provision in Rule 35(c) applicable here was moved to subsection (a) by
the 2002 amendments to the Rule.

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court. To do so would be particularly inappropriate here, where the district court

increased Bly’s Apprendi -reduced sentences some forty-nine days after they were

imposed and, thus, the government’s reliance on Rule 35(c), which contemplates

the court “acting within 7 days” of sentencing, would be ineffectual unless we

also resolved, in its favor, the unsettled tolling-by-motion issue debated at length

in its brief. 5

The government also points out that, in the end, “Bly received the same

sentence (i.e., life imprisonment) that he had received at both his prior sentencing

hearings,” and insists we should therefore conclude that “Bly’s rights were not

violated.” Aplee. Br. at 32. This argument rests on a patently faulty comparison.

Bly’s extant sentence at the time the district court heard the government’s motion

for reconsideration committed him to prison for 20 years. After the court granted

the motion, he was committed to prison for 180 years. To avoid acknowledging

the obvious gulf between these two sentences, the government must employ a

crucial, albeit tacit, assumption: once a defendant’s sentence has been reduced, it

may thereafter be summarily increased up to the initial level without implicating

any constitutional or other procedural rights of the defendant. The government

5
A helpful collection of cases touching on the question whether a motion
under Rule 35(c) tolls the rule’s seven-day deadline for correction of sentence is
set out in United States v. Prieto-Zubia , No. 00-2055-01-KHV, 2001 WL 950225
(D. Kan. July 3, 2001).

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cites no authority for this rather remarkable idea, and we consider it facially

implausible.

We do acknowledge, both to explain our holding and to clarify its reach, an

important distinction the government’s argument suggests but does not properly

rest on. We have held only that, following the reduction of Bly’s sentences under

Apprendi , the total term originally imposed did not set some sort of quantitative

threshold below which subsequent increases could be imposed without regard to

constitutional or procedural constraints otherwise applicable. This holding should

not be misconstrued to imply that if a district court issues an order in a § 2255

proceeding favorable to the defendant (such as the reduction in Bly’s sentence

under Apprendi ), the court cannot, on reconsideration, decide that that ruling was

incorrect (as, indeed, it was here under Mora ) and simply vacate its order without

conducting formal resentencing. In relation to the idea of true resentencing in

§ 2255 proceedings, it is important to distinguish between (a) simply vacating an

erroneous ruling that had had a favorable effect on a defendant’s sentence, and

(b) revisiting a previously reduced sentence and increasing it for some other

reason . The consecutive-term restructuring of Bly’s Apprendi -reduced sentence

under § 5G2.1(d) and Price clearly falls into the latter category, which possesses

enough of the character of traditional sentencing to invoke the constitutional and

procedural guarantees discussed above.

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 In sum, then, we conclude the district court had jurisdiction to consider the

government’s motion for reconsideration, but, in granting relief involving an

increase to Bly’s modified sentence, the district court should have afforded Bly

the procedural guarantees criminal sentencing traditionally entails. Accordingly,

we remand the case to the district court to vacate its order recasting Bly’s terms

of imprisonment as consecutive. On remand, the court may conduct any further

proceedings it deems appropriate, consistent with this opinion.

The cause is REMANDED to the district court to VACATE its resentencing

order of October 16, 2001, and then to conduct any further proceedings it deems

appropriate, consistent with this opinion.

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