United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1864
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Joshua Richard Ackerland, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
United States of America, *
*
Appellant. *
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Submitted: December 15, 2010
Filed: February 16, 2011
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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Joshua Richard Ackerland pled guilty to conspiracy to distribute and to possess
with intent to distribute 500 grams or more of methamphetamine. The district court
sentenced Ackerland to 96 months’ imprisonment. The court later granted
Ackerland’s motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, concluding
that it incorrectly calculated Ackerland’s criminal history score under the sentencing
guidelines at sentencing. The government filed a motion to reconsider, which the
district court denied. The government appeals the district court’s orders. We vacate
the order vacating Ackerland’s sentence and remand for further proceedings.
I.
In September 2007, Ackerland pled guilty, pursuant to a written plea agreement,
to conspiracy to distribute and to possess with intent to distribute 500 grams or more
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The statutory
minimum penalty was 120 months’ imprisonment, and the maximum penalty was life
imprisonment. 21 U.S.C. § 841(b)(1)(A). The district court calculated an advisory
guideline range of 188 to 235 months’ imprisonment, based on a total offense level
of 35 and a criminal history category of II. The court based the criminal history score
on two prior misdemeanor convictions, one for driving under the influence and
another for possession of drug paraphernalia. The government then moved pursuant
to USSG § 5K1.1 and 18 U.S.C. § 3553(e) to reduce Ackerland’s sentence below the
statutory minimum term based on his provision of substantial assistance. The court
granted the motion and imposed a sentence of 96 months’ imprisonment, followed by
five years of supervised release.
In March 2009, Ackerland moved to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. Ackerland argued that the district court erroneously
calculated his criminal history score by assessing a criminal history point for the
conviction involving possession of drug paraphernalia. He urged that this error
caused him to be scored in criminal history category II, and thus made him ineligible
for relief under 18 U.S.C. § 3553(f) and USSG § 5C1.2, the so-called “safety-valve”
provisions. These provisions allow the court to sentence a defendant below a statutory
minimum term of imprisonment that is otherwise applicable. The guideline applicable
to Ackerland’s drug trafficking offense further provides for a two-level decrease in
the base offense level if the defendant meets the safety-valve criteria. USSG
§ 2D1.1(b)(16). Ackerland also argued he was entitled to relief because he received
ineffective assistance of counsel, in violation of the Sixth Amendment.
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The district court granted Ackerland’s § 2255 motion and ordered resentencing.
The court concluded that Ackerland’s prior misdemeanor conviction for possession
of drug paraphernalia was uncounseled and that there was no evidence that Ackerland
waived his right to counsel. Citing Alabama v. Shelton, 535 U.S. 654 (2002), and
United States v. Cousins, 455 F.3d 1116 (10th Cir. 2006), the court determined that
an uncounseled misdemeanor conviction that results in a suspended sentence cannot
be used to enhance a sentence for a subsequent offense. The court therefore ruled that
the uncounseled conviction, which resulted in a suspended sentence of 12 months’
imprisonment, should not have contributed to Ackerland’s criminal history score. On
this basis, the court vacated Ackerland’s sentence and ordered a resentencing hearing.
The court did not address Ackerland’s ineffective assistance of counsel claim.
The government then filed a motion to reconsider, and submitted evidence to
show that Ackerland waived his right to counsel before he pled guilty to the drug
paraphernalia offense. The district court concluded that the government could have
presented the new evidence at the original hearing, and denied the motion. The
government appeals, challenging the district court’s order granting the § 2255 motion
and its order denying the motion to reconsider.
II.
After the government’s appeal was docketed, Ackerland moved to dismiss the
appeal of the district court’s underlying order granting the § 2255 motion. Ackerland
asserted that this portion of the appeal was untimely under Federal Rule of Appellate
Procedure 4(a)(1)(B), because it was filed more than sixty days after the district
court’s order. Because the order vacating Ackerland’s sentence was filed on February
8, 2010, Ackerland argued that the government’s notice of appeal was untimely when
filed on April 15, 2010.
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Under Rule 4(a)(1)(B), when the United States is a party, a notice of appeal
must be filed “within 60 days after the judgment or order appealed from is entered.”
Rule 4(a)(4) provides, however, that when a party files certain specified motions, the
time to file an appeal runs from the district court’s entry of the order disposing of the
motion. Ackerland contends that Rule 4(a)(4) is inapplicable, because the
government’s “motion to reconsider” is not one of the tolling motions listed in the
rule.
We conclude that the government timely filed its notice of appeal. Although
we have discouraged the use of a self-styled motion to reconsider “that is not
described by any particular rule of federal civil procedure,” Sanders v. Clemco Indus.,
862 F.2d 161, 168 (8th Cir. 1988), we typically construe such a filing as a Rule 59(e)
motion to alter or amend the judgment or as a Rule 60(b) motion for relief from
judgment. Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir. 2008). While
it is sometimes difficult to discern whether a motion to reconsider arises under Rule
59(e) or Rule 60(b), see Sanders, 862 F.2d at 168 & n.11, the distinction makes no
difference here. Under the current version of Rule 4(a)(4), motions filed under both
rules toll the running of Rule 4(a)(1)(B)’s sixty-day period until the district court
enters an order disposing of the motion. Fed. R. App. P. 4(a)(4)(A). Thus, the
government had sixty days from March 9, 2010 – the day the district court denied the
motion to reconsider – to file its notice of appeal. The notice filed on April 15 was
timely.
Ackerland relies on United States v. Whitford, 758 F.2d 329 (8th Cir. 1985) and
United States v. Austin, 217 F.3d 595 (8th Cir. 2000), to show that the appeal is
untimely. In both cases, this court held that motions to reconsider did not extend the
time for filing a notice of appeal under Rule 4, but neither decision is controlling here.
Whitford is inapposite because this court construed the motion at issue as a Rule 60(b)
motion, and under the version of Rule 4(a)(4) in effect at the time, Rule 60(b) motions
did not toll the appeal period. See 758 F.2d at 331; Fed. R. App. P. 4 advisory
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committee’s note (discussing 1993 amendments to subdivision (a)(4)). Austin is
distinguishable, because it involved an appeal from a judgment in a criminal case, and
was therefore governed by Rule 4(b) and the Federal Rules of Criminal Procedure.
See 217 F.3d at 597. For the reasons discussed, the government’s notice of appeal
was timely filed, and we deny Ackerland’s motion to dismiss the government’s appeal
of the district court’s order granting the § 2255 motion.
III.
On the merits, the government argues that the district court erred in vacating
Ackerland’s sentence, because Ackerland’s plea agreement included a waiver of his
right to seek collateral relief under § 2255, and the court cited no valid reason to avoid
the waiver. A defendant may waive the right to seek collateral relief under § 2255.
Chesney v. United States, 367 F.3d 1055, 1058 (8th Cir. 2004); DeRoo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000). Such a waiver is enforceable when the
claim raised falls within the scope of the waiver, the defendant knowingly and
voluntarily entered into the plea agreement and waiver, and enforcement of the waiver
would not result in a miscarriage of justice. United States v. Andis, 333 F.3d 886,
889-90 (8th Cir. 2003) (en banc).
Ackerland’s plea agreement provides that “[e]xcept for a claim of ineffective
assistance of counsel, the defendant . . . waives all rights to contest defendant’s
conviction or sentence in any post-conviction proceeding, including one pursuant to
Title 28, United States Code, Section 2255.” R. Doc. 95, at ¶ 23. The district court
rejected the government’s waiver argument in one sentence, stating that “in the
agreement, Ackerland reserved his right to appeal an illegal sentence.” This was error.
The plea agreement does not include a reservation of rights with respect to “an
illegal sentence.” The agreement does say that Ackerland waives his right to appeal
pursuant to 18 U.S.C. § 3742(a), “reserving only the right to appeal from an upward
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departure from the applicable Guideline range.” This reservation, however, applies
only to a direct appeal, not to a collateral attack under § 2255, and in any event, the
challenge at issue involves the district court’s computation of a criminal history score
under Chapter Four of the Guidelines Manual, not an “upward departure from the
applicable Guideline range.” See USSG § 1B1.1, comment. (n.1)(E) (“‘Departure’
means . . . imposition of a sentence outside the applicable guideline range or of a
sentence that is otherwise different from the guideline sentence.”); Irizarry v. United
States, 553 U.S. 708, 714 (2008) (“‘Departure’ is a term of art under the Guidelines
and refers only to non-Guidelines sentences imposed under the framework set out in
the Guidelines.”).
Our cases, as opposed to Ackerland’s plea agreement, do establish that an
otherwise valid waiver of post-conviction rights or appeal rights does not prevent a
defendant from attacking “an illegal sentence.” Andis, 333 F.3d at 891-92; DeRoo,
223 F.3d at 923. The en banc court in Andis, however, emphasized that “the illegal
sentence exception to the general enforceability of an appeal waiver is an extremely
narrow exception.” 333 F.3d at 892. The court elaborated as follows: “Any sentence
imposed within the statutory range is not subject to appeal. Specifically, an allegation
that the sentencing judge misapplied the Sentencing Guidelines or abused his or her
discretion is not subject to appeal in the face of a valid appeal waiver.” Id. (emphases
added).
The district court’s ruling is contrary to these clear statements from Andis.
Ackerland’s sentence was within the statutory range. His claim accepted by the
district court was that the sentencing judge misapplied the sentencing guidelines by
miscalculating his criminal history score. The “illegal sentence exception” thus
provides no basis for Ackerland to avoid his waiver of the right to contest his sentence
in a post-conviction proceeding.
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* * *
For the foregoing reasons, the district court’s order of February 8, 2010,
granting Ackerland’s motion to vacate his sentence is vacated, and the case is
remanded for further proceedings. Given this disposition, the government’s appeal
of the district court’s denial of the motion to reconsider is moot.
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