REVISED, April 29, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-30130
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ERIC CARMOUCHE,
Defendant-Appellant.
Appeal from the United States District Court For the Western District of Louisiana April 14, 1998
Before GARWOOD, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:
Eric Carmouche pleaded guilty to unlawful possession of a
short barrel shotgun in violation of 26 U.S.C. § 5861(d).
Carmouche was sentenced to 27 months imprisonment to be followed by
a 24 month period of supervised release. Carmouche appeals his
sentence. We affirm.
BACKGROUND
Police searched Carmouche’s rural property after receiving a
tip that Carmouche was involved in the disappearance of a cow. Two separate searches uncovered, not only the remains of the dead cow,
but also a United States Army blasting machine, a .45 caliber
automatic handgun, a sawed off shotgun accompanied by an extra
barrel less than 18 inches in length, a .223 caliber rifle
accompanied by parts to make it fully automatic, bomb detonation
cords, a blasting cap, and numerous boxes of small ammunition and
gun powder. Carmouche was subsequently charged with unlawful
possession of: (1) a machine gun; (2) a short barrel shotgun; and
(3) an explosive device.
Carmouche agreed to plead guilty to count 2, which alleged
unlawful possession of a short barrel shotgun, as defined in 26
U.S.C. § 5845(a)(1) and (d) and in violation of 26 U.S.C. §
5861(d). Counts 1 and 3 were dismissed pursuant to Carmouche’s
plea agreement. Carmouche was sentenced using a base offense level
of 18 because his offense involved a firearm defined in 26 U.S.C.
§ 5845(a). See U.S.S.G. § 2K2.1(a)(5). The district court imposed
a one-level increase because the offense involved three weapons,
see U.S.S.G. § 2K2.1(b)(1)(A), and a two-level increase because the
offense involved a “destructive device,” see U.S.S.G. §
2K2.1(b)(3). The district court also granted a three-level
reduction for acceptance of responsibility. Thus, Carmouche was
sentenced using a net base offense level of 18. On November 12,
1996, the district court entered judgment against Carmouche.
Six days later, on November 18, 1997, Carmouche filed a
pleading entitled “Motion to Correct Sentence Pursuant to Rule
35(c) Fed. R. Crim. P. and for Evidentiary Hearing.” Carmouche
2 argued that the district court erred by: (1) imposing sentence for
possession of a shotgun barrel, rather than a shotgun; (2) applying
the 1995 version of the sentencing guidelines; (3) imposing a
three-level adjustment for the possession of other firearms and
explosive devices; and (4) refusing to depart downward. More than
sixty days later, on January 22, 1997, the district court entered
an order denying Carmouche’s November 18 motion. The following
day, Carmouche filed a notice appealing his sentence and the
district court’s January 22 order denying the November 18 motion to
correct his sentence.
On appeal, Carmouche urges again the arguments presented in
the November 18 motion to correct his sentence. The government
responds that this Court is without jurisdiction because Carmouche
failed to file a timely notice of appeal. Prior to oral argument,
the government also filed a motion to dismiss for lack of
jurisdiction, which has been carried with the case.
DISCUSSION
1. Appellate Jurisdiction
The threshold issue in this case, and one that is
determinative of our jurisdiction, is whether Carmouche’s November
18 motion to correct his sentence suspended the ten-day time period
for filing an appeal. See FED. R. APP. P. 4(b). We conclude that
it did and that we therefore have jurisdiction to entertain
Carmouche’s appeal. See United States v. Moya, No. 94-10907 (5th
Cir. July 25, 1995)(unpublished), and 5th Cir. R. 47.5.3.
3 Moya construed a motion labelled as a Rule 35(c) motion as
“one of the species of motions for reconsideration” which suspend
the running of the 10-day period of FRAP 4(b). See Moya, No.
9410907, at 3-4. Although unpublished, Moya is binding precedent
in this Circuit because it was issued before January 1, 1996. See
5th Cir. R. 47.5.3. Carmouche filed his November 18 motion,
captioned as authorized by Federal Rule of Criminal Procedure
35(c), six days after the court entered judgment and thus within
the time period allowed for filing an appeal. Once filed, that
motion prevented the running of the 4(b) period, and extended the
time for filing an appeal until the district court disposed of that
motion on January 22, 1997. Therefore, Carmouche’s notice of
appeal, which was filed one day after the district court denied his
motion, was timely. We have jurisdiction to consider the merits of
Carmouche’s appeal.
2. The Shotgun Barrel
Carmouche pleaded guilty to count 2, which charged possession
of a short barrel shotgun, as defined in 26 U.S.C. § 5845(a)(1) and
(d) and in violation of 26 U.S.C. § 5861(d). Carmouche was
sentenced using sentencing guideline § 2K2.1, the guideline
applicable when the firearm is one defined by § 5845(a). Carmouche
argues on appeal that his conviction for violation of § 5861(d) is
invalid because the detached barrel found at his house does not
meet the technical definition given for a short barrel shotgun in
4 18 U.S.C. § 5845(a)(1) and (d). As a result, Carmouche contends
that the district court’s application of guideline § 2K2.1(a)(5)
was error.
By disputing the district court’s decision that Carmouche’s
offense involved a § 5845(a) firearm, and the district court’s
subsequent reliance upon guideline § 2K2.1(a)(5), Carmouche hopes
to reap the benefit of § 2K2.1(b)(2). Section 2K2.1(b)(2)
specifies a total base offense level of six when the firearm is
possessed solely for lawful sporting purposes or collection. The
favorable offense level provided in § 2K2.1(b)(2) is made expressly
unavailable when the offense involves a firearm defined in §
5845(a). U.S.S.G. § 2K2.1 application note 10.
Carmouche’s plea is supported by a sufficient factual basis.
The parties’ joint Rule 11(f) factual stipulation recites that the
police found the shotgun and the shotgun barrel, which was “made to
fit the shotgun” and was less than thirteen inches long, “[i]n
close proximity.” The PSR reports that Carmouche knowingly,
intentionally and unlawfully possessed a shotgun with a barrel
length of twelve and one-half inches. Carmouche received a three-
level reduction in his base offense level because he accepted
responsibility for the relevant conduct described in the PSR. Of
equal importance, Carmouche pleaded guilty to the indictment as
charged and has not formally challenged his plea, either in the
district court or in this Court, where his notice of appeal is
limited to sentencing issues. The district court did not err by
5 applying § 2K2.1(a)(5), the guideline applicable to Carmouche’s
offense, or by refusing to apply § 2K2.1(b)(2) to reduce
Carmouche’s sentence.
3. The Applicable Guidelines
Carmouche next contends that the district court erred by
applying the 1995 version of the sentencing guidelines instead of
the 1993 version, which the plea agreement stated would be used to
derive Carmouche’s sentence. Carmouche did not object to the
district court’s application of the 1995 version until he filed his
motion for reconsideration of sentence.
The district court’s application of the 1995 guidelines was
not reversible error. Although the plea agreement recites that the
1993 guidelines will be used, not every breach of a plea agreement
requires reversal. United States v. Hooten, 942 F.2d 878, 884 (5th
Cir. 1991). The guidelines in effect at the time of sentencing are
to be used unless application of the current guidelines would
implicate the ex post facto clause. U.S.S.G. § 1B1.11. Carmouche
claims that the ex post facto clause is implicated here because
§ 2K2.1(b)(2), providing a base offense level of six when firearms
are possessed for hunting or collection purposes, was deleted from
the guidelines in 1994. Carmouche is incorrect. Section
2K2.1(b)(2) appears in identical form in both the 1993 and 1995
version of the guidelines. Indeed, an examination of the 1993 and
1995 versions of the guidelines yields the conclusion that the
provisions are substantively identical for all purposes relevant to
this appeal. There are, therefore, no ex post facto concerns
6 requiring application of the 1993 guidelines. In addition, because
Carmouche was not prejudiced by the district court’s application of
the 1995 guidelines, any error was also harmless.
4. Failure to Hold Evidentiary Hearing
The district court increased Carmouche’s base offense level by
two levels because the offense involved “destructive devices”
seized from Carmouche’s house. See U.S.S.G. § 2K2.1(b)(3). The
guidelines define destructive devices as including any of a variety
of destructive or explosive items, and any firearm that will, or
can be readily converted to, “expel a projectile by the action of
an explosive or other propellant,” or any combination of parts
designed or intended for converting a device into a destructive
device. U.S.S.G. § 2K2.1 application note 4. On appeal, Carmouche
argues that the district court erred by failing to grant an
evidentiary hearing to explore Carmouche’s contention that the
explosive devices seized from his home belonged to another person,
who was storing the items at Carmouche’s house.
An assortment of firearms and explosive materials were found
at Carmouche’s residence, including explosive RDX, explosive FFGg
black powder, Hercules Red Dot double base explosive shotgun
powder, Winchester Western explosive double base powder, and a
section of explosive detonating cord .20 inches in diameter
containing explosive PETN. Even if some of these items belonged to
another individual, the subject offense is possession and there is
no dispute that the items were found in Carmouche’s possession at
his rural residence, where he lived alone. Additionally, Carmouche
7 was required to accept responsibility for all relevant conduct,
including possession of the additional firearms and explosive
devices, in order to receive a three level reduction for acceptance
of responsibility. Having reviewed the record, we cannot conclude
that the district court erroneously failed to conduct an
evidentiary hearing to consider whether Carmouche had both title
and possession of these dangerous destructive devices.
5. Failure to Depart
Carmouche contends that the district court erred by refusing
to depart downward because this case falls outside the heartland of
those offenses contemplated by § 2K2.1. See U.S.S.G., Ch. 1, Pt.
A, 4(b).
A district court’s refusal to grant a downward departure is
not reviewable on appeal unless the refusal is a violation of law.
United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). We
have previously held that a refusal to depart violates the law when
the district court’s refusal is based upon the mistaken belief that
the court is without authority to depart. Id. at 222. We have no
jurisdiction, however, when the district court’s refusal to depart
is based upon the determination that departure is not warranted on
the facts of the case. Id.
The district court concluded the sentencing hearing with the
remark that it did not consider Carmouche to be a menace, but that
it had “no choice” with respect to Carmouche’s sentence because the
government had not filed a motion requesting departure. Thus,
Carmouche maintains that the district court failed to recognize its
8 authority to depart on the theory that Carmouche’s conduct was
outside the heartland defined by the applicable guidelines.
We disagree. The district court’s concluding remarks were not
directed to any particular objection or argument of the defendant.
With respect to Carmouche’s “heartland” argument, the district
expressly found that there was “no reason to depart from the
sentence called for by the application of the guidelines inasmuch
as the facts as found are of a kind contemplated by the Sentencing
Commission.” We have no jurisdiction to review the district
court’s determination that a departure was not warranted on the
facts of Carmouche’s case. Id.
For the foregoing reasons, the government’s motion to dismiss
is DENIED and the district court is in all respects AFFIRMED.
ENDRECORD
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 on 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
9 unpublished disposition in United States v. Moya, No. 94-10907 (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 suspend the
time period for filing an appeal in a criminal matter. E.g.,
United States v. Healy, 84 S. Ct. 553, 556-57 (1964). The Healy
doctrine 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, 97 S. Ct. 18, 19-20 & n.3 (1976); Healy, 84 S. Ct. at 556;
10 United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995),
corrected without substantive change, 1997 WL 447234 (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, 97 S. Ct. at 19-20; Healy, 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,
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 (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
reconsidera-tion). 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
11 1465-66 (internal quotations and alterations omitted); see also
United States v. Ibarra, 112 S. Ct. 4, 7 (1991); Dieter, 97 S. Ct.
at 19-20.
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, 97 S. Ct. at 19 n.3; Healy, 84 S. Ct. at 556; Brewer, 60
F.3d at 1144; Greenwood, 974 F.2d at 1466. We have therefore held
12 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 1464-71. 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.
I have no problem concluding in this case that Carmouche’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
13 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 inadvertent, but instead reflect the
considered judgment of the district court that Carmouche was not
entitled to relief. Carmouche’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 case 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
14 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 post-judgment 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
Carmouche’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
1 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.
15 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 Morillo 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 of 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
16 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
2 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, 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 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 6-7.
17 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 articulates 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 Ibarra, 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, 112 S. Ct. at 6-7;
Greenwood, 974 F.2d 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, 97 S. Ct.
at 19-20. Clearly, the Court is not free to condone an approach
18 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 alteration of the
rights adjudicated. Ibarra, 112 S. Ct at 7; Dieter, 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.
19 DUHÉ, Circuit Judge, with whom GARWOOD, Circuit Judge, joins
specially concurring:
While recognizing that we are bound by our unpublished
decision in Moya, supra, we write separately to urge this Court to
reconsider en banc Moya’s holding that a pending Fed. R. Crim. P.
35(c) motion will postpone running of the Fed. R. App. P. 4(b) time
period for filing a notice of appeal until the judge disposes of
the motion. We believe Moya was incorrectly decided for the
following reasons.
Moya held that a defendant’s motion to correct his sentence
under Fed. R. Crim. P. 35(c) was “one of the species of motions for
reconsideration” that prevent running of the ten-day 4(b) time
period until disposition of the motion. Moya, No. 94-10907, at 4.
The Moya panel recognized that a Rule 35(c) motion was not one of
those listed in Fed. R. App. P. 4(b) as postponing commencement of
the ten-day period. Id. at 3. Nevertheless, the panel included
Moya’s 35(c) motion within the class of “motions for
reconsideration” which the jurisprudence has traditionally given
suspensory effect. Id., citing United States v. Greenwood, 974
F.2d 1449, 1466 (5th Cir. 1992). Finally, the panel found that the
rule in Greenwood had survived the 1993 amendment to Rule 4(b).
Moya, No. 94-10907, at 4, citing United States v. Brewer, 60 F.3d
1142, 1144 (5th Cir. 1995).
We believe the en banc Court should overrule Moya because it disregarded the language and implications of Rule 4(b), and because
it overlooked the effect of the 1991 amendment to Fed. R. Crim. P.
35 and Rule 35's accompanying Advisory Committee Notes. We also
urge the en banc Court to clarify the effect of a timely-filed Rule
35(c) motion on the running of the 4(b) period, in order to give
appellants a “bright-line” standard for determining when the ten-
day limitation on filing a notice of appeal begins to run. See,
e.g., United States v. Morillo, 8 F.3d 864, 869 (1st Cir. 1993).
Fed. R. Crim. P. 35 was amended in 19913 to codify a district
court’s “inherent authority” to correct an erroneous sentence. See
Fed. R. Crim. P. 35(c), advisory committee notes (1991 amendment).
The Advisory Committee Notes indicate that, while the Committee
wanted to explicitly recognize such authority, it also “believed
that the time for correcting such errors should be narrowed within
the time for appealing the sentence to reduce the likelihood of
jurisdictional questions in the event of an appeal....” Id. To
that end, the Committee
contemplat[ed] that the [district] court would enter an order correcting the sentence and that such order must be entered within the seven (7) day period so that the appellate process (if a timely appeal is taken) may proceed without delay and without jurisdictional confusion.
3 Rule 35(c), eff. December 1, 1991, reads: “The Court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical or other clear error.”
21 Id.4 In light of new Rule 35(c), Fed. R. App. P. 4(b) was amended
to read, in pertinent part:
The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Fed.R.Crim.P. 35(c), nor does the filing of a motion under Fed.R.Crim.P. 35(c) affect the validity of a notice of appeal filed before entry of the order disposing of the motion.
See Fed. R. App. P. 4(b)(amendment eff. Dec. 1, 1993) and advisory
committee notes (1993 amendment). Rule 4(b), as discussed above,
does not list a Rule 35(c) motion as one that postpones running of
the ten-day period for filing a notice of appeal.
Both of these statutory changes were in effect when Moya was
decided in 1995. Nonetheless, Moya summarily decided that a
defendant’s Rule 35(c) motion to correct his sentence, based on an
asserted error in imposing supervised release under 18 U.S.C. §
3565(a)(2), was a “motion for reconsideration” that effectively
postponed running of the 4(b) period until disposition of the
motion. Moya, No. 94-10907, at 3-4. The Moya panel did not
mention the Advisory Committee Notes to amended Rule 35(c), nor did
it consider the combined effect of amended Rule 35(c) and amended
Rule 4(b), except to observe that the Greenwood rule survived the
4 We so recognized in United States v. Lopez, 26 F.3d 512, 518- 19 (5th Cir. 1994), where we also cited Morillo with approval. See also United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).
22 1993 amendments to Rule 4(b).5 Id., at 4.
Although we recognize that amended Rules 4(b), 35(c) and their
accompanying notes are subject to more than one interpretation, we
believe that the most reasonable construction is the one given by
the First Circuit in United States v. Morillo, 8 F.3d 864, 867-70
(1st Cir. 1993). There the First Circuit, guided by the erudite
pen of Judge Selya, held that:
(1) a motion under Rule 35(c) interrupts the [4(b)] appeal period and renders a judgment nonfinal only if it is brought within seven days following the imposition of sentence; and (2) the appeal period is restarted when the district court decides a timeous6 Rule 35(c) motion or at the expiration of seven days next following imposition of sentence, whichever first occurs.
Id. at 869. Morillo thus recognized two different aspects of the
issue: first, that the Healy doctrine continued to apply to a Rule
35(c) motion, notwithstanding the absence of a 35(c) motion from
the list of motions in Rule 4(b) that interrupt the ten-day appeal
period;7 and second, that application of the Healy doctrine is,
5 Moya cited Brewer, supra, for the proposition that Greenwood was unaffected by the 1993 amendments to Rule 4(b). See Brewer, 60 F.3d at 1144. We merely observe here that Brewer did not deal with a Rule 35(c) motion at all -- instead, Brewer addressed the effects on the 4(b) period of a motion to set aside a conviction rather than a sentence. See id. at 1144-46. 6 “timely” -- Webster’s Third New World Dictionary 2395 (3d ed. 1981). 7 See United States v. Healy, 376 U.S. 75, 78-80 (1964). See also United States v. Ibarra, 502 U.S. 1, 6-7 (1991); United States v.
23 however, limited to the seven-day period imposed by amended Rule
35(c). After seven days, the 35(c) motion is deemed denied, even
if still pending. Id.; see also United States v. Turner, 998 F.2d
534, 536 (7th Cir. 1993). In our view, the First Circuit’s
approach rationally effects the Advisory Committee’s desire to
balance judicial efficiency with a concern that “the appellate
process ... proceed without delay and without jurisdictional
confusion.” Fed. R. Crim. P. 35, advisory committee notes (1991
amendment).
To the extent that Moya can be interpreted as holding that all
Rule 35(c) motions indefinitely postpone running of the 4(b) period
(that is, until the court disposes of the motion), we would urge
the en banc Court either to overrule the decision, or at least to
clarify its holding. The Supreme Court itself has observed, in
refusing to accord suspensory effect only to meritorious motions
for reconsideration, that “[w]ithout a clear general rule litigants
would be required to guess at their peril the date on which the
time to appeal commences to run.” United States v. Ibarra, 502
U.S. 1, 7 (1991). For the same reason, we would decline to adopt
Judge DeMoss’s approach (see supra at ____) that a court accord
suspensory effect only to those 35(c) motions that are more
appropriately styled common-law “motions for reconsideration.”
Dieter, 429 U.S. 6, 8 (1976)(per curiam); Greenwood, 974 F.2d at 1470-71.
24 Such an approach, while it may find some support in case law
antedating the amendments to Rules 4(b) and 35,8 would fail to
accord to potential appellants (whom, after all, the “bright line”
rule is here intended to protect) a sufficient yardstick by which
to measure the time within which to file a notice of appeal.
For the moment, however, we bow our heads to Moya’s
precedential force and find that Carmouche’s appeal was timely.
8 See, e.g., Greenwood, 974 F.2d at 1464-1471.