United States v. Rodney Blythe

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 2, 2020
• Docket: 19-14470
• Status: Unpublished

Opinion

Case: 19-14470 Date Filed: 09/02/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14470 Non-Argument Calendar ________________________

D.C. Docket No. 1:92-cr-00170-TFM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODNEY BLYTHE,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(September 2, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and GRANT, Circuit Judges.

PER CURIAM: Case: 19-14470 Date Filed: 09/02/2020 Page: 2 of 4

Rodney Blythe appeals the denial of his pro se “Letter/Motion to Correct

Unlawful Sentence,” in which he sought to vacate his new term of supervised

release. We affirm.

I.

In September 2018, while serving a five-year term of supervised release

imposed as part of his sentence for drug crimes he committed in 1992, Blythe was

arrested for driving under the influence. Blythe’s probation officer petitioned the

district court to revoke his term of supervised release. Blythe waived his right to a

revocation hearing and admitted that he had violated the conditions of his

supervised release. The district court revoked Blythe’s supervised release and

sentenced him to 11 months in prison followed by a four-year term of supervised

release. Blythe appealed, arguing through counsel that his 11-month imprisonment

sentence was procedurally and substantively unreasonable. We affirmed. United

States v. Blythe, 795 F. App’x 667 (11th Cir. 2019).

In October 2019, while his counseled appeal from his supervised release

revocation was still pending, Blythe filed a pro se “Letter/Motion to Correct

Unlawful Sentence,” arguing that the four-year term of supervised release imposed

as part of his revocation sentence violated the Ex Post Facto Clause and should be

vacated. The district court denied the motion for “the reasons stated during the

Revocation Hearing.” Blythe now appeals that order.

2 Case: 19-14470 Date Filed: 09/02/2020 Page: 3 of 4

II.

We affirm the denial of Blythe’s motion for two reasons. First, the district

court lacked the authority to grant a motion to modify Blythe’s sentence because

his direct appeal from the same judgment was pending in this Court—“it is settled

that during the pendency of an appeal the trial court is without authority to modify

a sentence meted out after final judgment.” Shewchun v. United States, 797 F.2d

941, 942 (11th Cir. 1986).1

Second, Blythe could have raised his Ex Post Facto argument in his direct

appeal, but he failed to do so. We decline to consider it now. See United States v.

Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997) (a matter omitted from a

first appeal “may be held foreclosed on a later appeal to the same court as a matter

of law of the case”); United States v. Fiallo-Jacome, 874 F.2d 1479, 1482 (11th

Cir. 1989) (declining to give the appellant “two bites at the appellate apple”).

Accordingly, we affirm the district court’s denial of Blythe’s pro se motion to

correct his sentence.

1 Generally, “the filing of a timely and sufficient notice of appeal acts to divest the trial court of jurisdiction over the matters at issue in the appeal, except to the extent that the trial court must act in aid of the appeal.” Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986). We have held, however, that a district court retains jurisdiction to deny a motion attacking a judgment while an appeal from the judgment is pending, because the denial works “in furtherance of the appeal.” Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003); cf. Fed. R. Crim. P. 37(a) (“If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.”). 3 Case: 19-14470 Date Filed: 09/02/2020 Page: 4 of 4

AFFIRMED.