USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-13790 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:01-cr-00058-MSS-GJK-1 ____________________ USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 2 of 8
2 Opinion of the Court 21-13790
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges. PER CURIAM: David Williams appeals the district court’s partial grant and partial denial of his motion to reduce sentence under the First Step Act 1 and denial of his motion for reconsideration. The govern- ment moved to dismiss the appeal as untimely, arguing that Wil- liams’s motion for reconsideration did not toll the time to appeal as the grant of an 18 U.S.C. § 3582(c) motion can only be challenged through a Rule 35(a) motion, which does not toll the time to ap- peal, for which it cited United States v. Phillips, 597 F.3d 1190 (11th Cir. 2000). We carried with the case the issue of whether the timely motion for reconsideration tolled the time to appeal and de- cide it first because it affects our jurisdiction. In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after entry of the judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). The deadline under Rule 4(b) for a defendant to file a notice of appeal in a crim- inal case is not jurisdictional. See United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009). Instead, the filing deadline is consid- ered a claims processing rule, and the government can waive an objection to an untimely notice of appeal in a criminal case. Id. at
1 First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 3 of 8
21-13790 Opinion of the Court 3
1312 13. Nevertheless, if the government raises the issue of timeli- ness, then we “must apply the time limits of Rule 4(b).” Id. at 1313 14. Motions for reconsideration allow courts to “reconsider [a] question decided in the case in order to effect an alteration of the rights adjudicated.” United States v. Dieter, 429 U.S. 6, 8 9 (1976) (quotation marks omitted). Although a motion for reconsideration in a criminal action is not expressly authorized by the Federal Rules of Criminal Procedure, the filing of such a motion tolls the time for filing a notice of appeal and the time begins to run anew following disposition of the motion. United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir. 1992). A motion for reconsideration in a criminal case must be filed within the period of time allotted for filing a no- tice of appeal in order to extend the time for filing the notice of appeal. Id. at 1414. Thus, a criminal defendant must file a motion for reconsideration within 14 days of the order or judgment. Id. However, a motion filed under Rule 35(a) does not toll the time to appeal. Fed. R. App. P. 4(b)(5). District courts lack inherent authority to modify a term of imprisonment but may do so to the extent that a statute or Rule 35 expressly permits. 18 U.S.C. § 3582(c)(1)(B). A party files a Fed. R. Crim. P. 35(a) motion when they seek to “correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). In Phillips, the government filed a motion for re- consideration of the district court’s order granting a sentence re- duction, asking to correct the sentence that the court imposed USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 4 of 8
4 Opinion of the Court 21-13790
based on an error during the calculation of the Guidelines range for the sentence reduction. 597 F.3d at 1193. We held that a district court only has the authority to modify a sentence through the nar- row authority granted under 18 U.S.C. § 3582(c), which does not provide for a motion for reconsideration. Phillips, 597 F.3d at 1194 97. We further held that, when the district court grants a motion and modifies the original sentence, the strictures of § 3582(c) apply. Id. at 1197-99. When the government argued that the Supreme Court and this Court have permitted motions for reconsideration in criminal cases, we distinguished those cases because: (1) those decisions “did not involve a motion to correct an imprisonment sentence and therefore they did not need to address the unambig- uous language in § 3582(c)(1)(B) which prohibits a district court from modifying an imprisonment sentence except as ‘expressly permitted by statute or by Rule 35’”; and (2) § 3582(c)(1)(B) does not provide for a motion for reconsideration as an exception to the sentence modification prohibition. Id. at 1200 (emphasis in origi- nal). In Llewlyn, we determined that the denial of a motion to re- duce sentence did not necessarily implicate Rule 35(a). United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). As in Llewlyn, Williams did not ask the district court to “correct a sen- tence that resulted from arithmetical, technical, or other clear er- ror.” Fed. R. Crim. P. 35(a). The First Step Act permits district courts to reduce a previ- ously imposed sentence “as if sections 2 and 3 of the Fair Sentenc- ing Act . . . were in effect at the time the covered offense was USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 5 of 8
21-13790 Opinion of the Court 5
committed.” First Step Act § 404(b). Listed under “limitations,” a court cannot entertain a successive motion under the First Step Act if the defendant’s sentence was either imposed or previously re- duced in accordance with the Fair Sentencing Act or if a prior mo- tion under the First Step Act had previously been denied “after a complete review of the motion on the merits.” Id. In United States v. Edwards, we determined that § 404 of the First Step Act was its “own procedural vehicle” differing from § 3582(c), holding that § 404 was self-contained and self-executing. 997 F.3d 1115, 1119 (11th Cir. 2021), cert. denied, 142 S. Ct. 509 (2021). We noted that the language in the two statutes differed because the First Step Act authorized a reduction in “sentence” while § 3582(c) authorized a modification of a “term of imprisonment. Id. at 1118.
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USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-13790 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:01-cr-00058-MSS-GJK-1 ____________________ USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 2 of 8
2 Opinion of the Court 21-13790
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges. PER CURIAM: David Williams appeals the district court’s partial grant and partial denial of his motion to reduce sentence under the First Step Act 1 and denial of his motion for reconsideration. The govern- ment moved to dismiss the appeal as untimely, arguing that Wil- liams’s motion for reconsideration did not toll the time to appeal as the grant of an 18 U.S.C. § 3582(c) motion can only be challenged through a Rule 35(a) motion, which does not toll the time to ap- peal, for which it cited United States v. Phillips, 597 F.3d 1190 (11th Cir. 2000). We carried with the case the issue of whether the timely motion for reconsideration tolled the time to appeal and de- cide it first because it affects our jurisdiction. In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after entry of the judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). The deadline under Rule 4(b) for a defendant to file a notice of appeal in a crim- inal case is not jurisdictional. See United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009). Instead, the filing deadline is consid- ered a claims processing rule, and the government can waive an objection to an untimely notice of appeal in a criminal case. Id. at
1 First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 3 of 8
21-13790 Opinion of the Court 3
1312 13. Nevertheless, if the government raises the issue of timeli- ness, then we “must apply the time limits of Rule 4(b).” Id. at 1313 14. Motions for reconsideration allow courts to “reconsider [a] question decided in the case in order to effect an alteration of the rights adjudicated.” United States v. Dieter, 429 U.S. 6, 8 9 (1976) (quotation marks omitted). Although a motion for reconsideration in a criminal action is not expressly authorized by the Federal Rules of Criminal Procedure, the filing of such a motion tolls the time for filing a notice of appeal and the time begins to run anew following disposition of the motion. United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir. 1992). A motion for reconsideration in a criminal case must be filed within the period of time allotted for filing a no- tice of appeal in order to extend the time for filing the notice of appeal. Id. at 1414. Thus, a criminal defendant must file a motion for reconsideration within 14 days of the order or judgment. Id. However, a motion filed under Rule 35(a) does not toll the time to appeal. Fed. R. App. P. 4(b)(5). District courts lack inherent authority to modify a term of imprisonment but may do so to the extent that a statute or Rule 35 expressly permits. 18 U.S.C. § 3582(c)(1)(B). A party files a Fed. R. Crim. P. 35(a) motion when they seek to “correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). In Phillips, the government filed a motion for re- consideration of the district court’s order granting a sentence re- duction, asking to correct the sentence that the court imposed USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 4 of 8
4 Opinion of the Court 21-13790
based on an error during the calculation of the Guidelines range for the sentence reduction. 597 F.3d at 1193. We held that a district court only has the authority to modify a sentence through the nar- row authority granted under 18 U.S.C. § 3582(c), which does not provide for a motion for reconsideration. Phillips, 597 F.3d at 1194 97. We further held that, when the district court grants a motion and modifies the original sentence, the strictures of § 3582(c) apply. Id. at 1197-99. When the government argued that the Supreme Court and this Court have permitted motions for reconsideration in criminal cases, we distinguished those cases because: (1) those decisions “did not involve a motion to correct an imprisonment sentence and therefore they did not need to address the unambig- uous language in § 3582(c)(1)(B) which prohibits a district court from modifying an imprisonment sentence except as ‘expressly permitted by statute or by Rule 35’”; and (2) § 3582(c)(1)(B) does not provide for a motion for reconsideration as an exception to the sentence modification prohibition. Id. at 1200 (emphasis in origi- nal). In Llewlyn, we determined that the denial of a motion to re- duce sentence did not necessarily implicate Rule 35(a). United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). As in Llewlyn, Williams did not ask the district court to “correct a sen- tence that resulted from arithmetical, technical, or other clear er- ror.” Fed. R. Crim. P. 35(a). The First Step Act permits district courts to reduce a previ- ously imposed sentence “as if sections 2 and 3 of the Fair Sentenc- ing Act . . . were in effect at the time the covered offense was USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 5 of 8
21-13790 Opinion of the Court 5
committed.” First Step Act § 404(b). Listed under “limitations,” a court cannot entertain a successive motion under the First Step Act if the defendant’s sentence was either imposed or previously re- duced in accordance with the Fair Sentencing Act or if a prior mo- tion under the First Step Act had previously been denied “after a complete review of the motion on the merits.” Id. In United States v. Edwards, we determined that § 404 of the First Step Act was its “own procedural vehicle” differing from § 3582(c), holding that § 404 was self-contained and self-executing. 997 F.3d 1115, 1119 (11th Cir. 2021), cert. denied, 142 S. Ct. 509 (2021). We noted that the language in the two statutes differed because the First Step Act authorized a reduction in “sentence” while § 3582(c) authorized a modification of a “term of imprisonment. Id. at 1118. We ex- plained that the plain terms in § 404 of the First Step Act broadly authorize district courts to reduce sentences under certain circum- stances while § 3582(c) grants narrow authority to modify terms of imprisonment. Id. at 1118 19. Here, Phillips is inapplicable because the statutory bar under 18 U.S.C. § 3582(c) was not triggered, as the district court reduced Williams’s sentence pursuant to its authority under § 404 of the First Step Act rather than § 3582(c). Moreover, nothing in the First Step Act confines its broad authority to the strictures of Rule 35(a). Therefore, Williams’s timely motion for reconsideration tolled the time to appeal. As such, the government’s motion to dismiss is DENIED. USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 6 of 8
6 Opinion of the Court 21-13790
We now turn to Williams’s substantive argument. He ar- gues that the district court erred in relying on United States v. Den- son2 to support its determination that it lacked authority to reduce his sentence. The government moved for summary affirmance, arguing that he forfeited his challenge to the district court’s partial denial of his underlying motion by failing to challenge on appeal the court’s alternative determination that, even if it had authority to reduce his term of imprisonment, it would decline to do so as a matter of discretion. It asserts that he also forfeited any challenge to the denial of his motion for reconsideration by failing to chal- lenge that order on appeal. We review de novo whether a district court had the author- ity to modify a term of imprisonment. United States v. Taylor, 982 F.3d 1295, 1298 (11th Cir. 2020). We review the denial of an eligible defendant’s request for a reduced sentence under the First Step Act for abuse of the district court’s “broad discretion.” See Concepcion v. United States, 142 S. Ct. 2389, 2404 (2022). District courts lack inherent authority to modify a term of imprisonment but may do so to the extent that a statute expressly permits. 18 U.S.C. § 3582(c)(1)(B). The Fair Sentencing Act, 3 en- acted in 2010, amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the disparity between sentences for crack and powder cocaine
2 United States v. Denson, 963 F.3d 1080 (11th Cir. 2020), abrogated on other grounds by Concepcion v. United States, 142 S. Ct. 2389 (2022). 3 Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 7 of 8
21-13790 Opinion of the Court 7
offenses. Dorsey v. United States, 567 U.S. 260, 268-69 (2012). The subsequent First Step Act retroactively applies the statutory penal- ties for “covered offenses” under the Fair Sentencing Act. See First Step Act § 404(a). “Section 404(c) of the First Step Act confers par- ticular discretion, clarifying that the Act does not require a court to reduce any sentence.” Concepcion, 142 S. Ct. at 2404 (quotation marks omitted). Where a defendant does not offer any argument regarding an issue on appeal, he is deemed to have forfeited that issue. United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (holding that issues not raised in an initial brief are deemed for- feited and will not be addressed absent extraordinary circum- stances), cert. denied, 143 S. Ct. 95 (2022). A lower court’s “judg- ment is due to be affirmed” when an appellant fails to challenge one of the grounds on which the lower court made its decision. United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014) (quota- tion marks omitted). Here, Williams forfeited his challenge to the district court’s denial of his § 404 motion because he failed to challenge the court’s discretionary decision not to reduce his sentence on which the court partially based its denial. Because Williams failed to chal- lenge one of the grounds on which the lower court made its deci- sion, the court’s judgment is due to be affirmed. Further, Williams also forfeited any challenge to the district court’s denial of his mo- tion for reconsideration because he failed to challenge that order on appeal. USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 8 of 8
8 Opinion of the Court 21-13790
AFFIRMED. 4
4 The government’s motion to stay the briefing schedule is denied as moot.