United States v. Fish

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 6, 2022
• Docket: 21-7044
• Status: Unpublished

Opinion

FILED Appellate Case: 21-7044 Document: 010110628151 Date Filed: United01/06/2022 States CourtPage: 1 of Appeals Tenth Circuit

January 6, 2022 UNITED STATES COURT OF APPEALS Christopher M. Wolpert TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-7044 (D.C. No. 6:20-CR-00021-RAW-1) BRANDIS NICOLE FISH, (E.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before BACHARACH, MURPHY, and CARSON, Circuit Judges.

After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Accordingly,

we order the case submitted without oral argument.

Brandis Nicole Fish filed an 18 U.S.C. § 3582(c)(1)(A) motion for

compassionate release. The district court denied the motion on July 10, 2021.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-7044 Document: 010110628151 Date Filed: 01/06/2022 Page: 2

Thirty days later, on August 9, 2021, Fish filed in the district court a motion to

reconsider the denial of her § 3582(c)(1)(A) motion. After the district court

denied her motion to reconsider, Fish filed the instant appeal. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the order of the

district court denying Fish’s motion for reconsideration.

This court reviews the denial of a motion for reconsideration for abuse of

discretion. 1 United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir.

2004). The Federal Rules of Criminal Procedure do not authorize motions for

reconsideration. United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).

Such motions are proper, however, whether filed by a defendant or the

government. Id. at 1242. Because such motions are not based in the Federal

Rules of Criminal procedure, no rule specifies a time limit within which they

must be brought. Id. Noting the serious problems that would inhere in allowing

an unlimited time period for the filing of such motions, this court has held that

motions for reconsideration in criminal proceedings must be brought within

fourteen days, the outer limit for the filing of a notice of appeal in a criminal

proceeding. Id. at 1241-43; see also United States v. Heath, 846 F. App’x 725,

727-28 (10th Cir. 2021) (unpublished disposition cited solely for its persuasive

1 Fish labeled her motion as a “Rule 60(b) Motion To Reconsider.” Proceedings under § 3582(c) are, however, criminal in nature. See United States v. McCalister, 601 F.3d 1086, 1087 (10th Cir. 2010). Thus, the Federal Rules of Criminal Procedure, not the Federal Rules of Civil Procedure, apply. See id.

-2- Appellate Case: 21-7044 Document: 010110628151 Date Filed: 01/06/2022 Page: 3

value) (applying the rule in Randall to § 3582(c)(1) proceedings). Because Fish

filed her motion for reconsideration far more than fourteen days after the district

court denied her § 3582(c)(1)(A) motion, this court affirms the district court’s

denial for her motion for reconsideration. Randall, 666 F.3d at 1241-43; Heath,

846 F. App’x at 727-28.

For those reasons set out above, the order of the district court denying

Fish’s motion for reconsideration is hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

-3-