U.S. v. Barragan-Mendoza

• Decision Date: 19 April 1999
• Docket Number: No. 97-30264,BARRAGAN-MENDOZA,97-30264
• Citation: 174 F.3d 1024
• Parties: 99 Cal. Daily Op. Serv. 2810, 1999 Daily Journal D.A.R. 3645 UNITED STATES of America, Plaintiff-Appellee, v. Gabriel, aka Gabriel Barragan-Barragan aka Gabriel Barragan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1024

174 F.3d 1024

99 Cal. Daily Op. Serv. 2810, 1999 Daily

Journal D.A.R. 3645

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel BARRAGAN-MENDOZA, aka Gabriel Barragan-Barragan aka Gabriel Barragan, Defendant-Appellant.

No. 97-30264.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1998.

Decided April 19, 1999.

Michael Donahoe, Assistant Federal Defender, Federal Defenders of Montana, Helena, Montana, for the defendant-appellant.

Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding. D.C. No. CR-96-00068-DWM.

Before: SKOPIL, REINHARDT and GRABER, Circuit Judges.

SKOPIL, Circuit Judge:

I. Overview

Gabriel Barragan-Mendoza (Barragan) pleaded guilty to unlawful possession with intent to distribute cocaine and unlawful distribution of cocaine and was sentenced. After the government filed a motion to reconsider that sentence, the district court held an evidentiary hearing and entered an amended judgment increasing Barragan's sentence. Barragan contends on appeal that the district court was without jurisdiction to amend his sentence because the court failed to act within the seven-day time period afforded by Fed.R.Crim.P. 35(c) for correcting an erroneous sentence. We agree. Accordingly, the amended sentence is vacated, and the cause is remanded to the district court for imposition of the original sentence.

II. Background

Following his guilty plea, Barragan was sentenced on May 29, 1997 to a term of twenty-seven months. This sentence represented a substantial downward departure from the sixty-month minimum sentence mandated by 21 U.S.C. § 841(B). The court premised this downward departure on U.S.S.G. § 5K2.13, which it believed provided authority to depart from the statutory minimum because of Barragan's "diminished mental capacity."

On June 3, 1997, five days after sentencing, the government filed a "Motion to Reconsider Sentence" with the district court, contending that the court did not have authority to reduce Barragan's sentence under § 5K2.13 for diminished mental capacity. The court held a hearing on the motion to reconsider on July 31, 1997, two months after Barragan was sentenced. At this hearing, the court conceded that it had made a mistake, but expressed concern over whether it still had authority to correct the error under Rule 35(c), because far more than seven days had passed since the original imposition of sentence. Attorneys for both sides assured the court that, because the motion for reconsideration was filed within seven days, the court retained authority to consider the motion. After an evidentiary hearing, the court ruled that there was no basis for departure and sentenced Barragan to sixty months of incarceration. This amended judgment was entered on August 1, 1997.

That evening, Barragan's attorney faxed the court a letter dated July 31, 1997, claiming that, upon reflection, he now was of the opinion that the court did not have jurisdiction to reconsider Barragan's sentence under Rule 35(c). On August 6, 1997, Barragan filed his own Rule 35(c) motion to correct his amended sentence, arguing that the court had acted without jurisdiction. The court took no action on this motion, and Barragan filed his notice of appeal on August 18, 1997.

III. Discussion

A. Appellate Jurisdiction

Initially, we must resolve our own jurisdiction to decide this appeal. The government contends that we do not have jurisdiction to decide Barragan's appeal because his notice of appeal was untimely. We disagree.

Under Fed. R.App. P. 4(b), a defendant generally has ten days after the entry of judgment within which to file a notice of appeal. Compliance with this requirement is jurisdictional, and this court cannot decide appeals that do not meet Rule 4(b)'s requirements. See United States v. Eccles, 850 F.2d 1357, 1363 (9th Cir.1988). It is undisputed that Barragan filed his notice of appeal more than ten days after the district court entered its amended judgment. Normally, this fact would deprive us of jurisdiction to decide Barragan's appeal. Here, however, Barragan filed a timely Rule 35(c) motion to correct his sentence. Rule 35(c) provides that a district 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." Fed.R.Crim.P. 35(c). Barragan contends that his ten-day window for appeal under Rule 4(b) did not open until the expiration of the seven-day period. We have not previously decided whether a Rule 35(c) motion extends the time to file a notice of appeal of the underlying sentence. We now conclude that it does.

Rule 4(b) lists motions that delay the running of the 10-day filing period. A Rule 35(c) motion is not on that list. Nevertheless, the Supreme Court has long held that a timely motion for rehearing or reconsideration of an order in a criminal case delays the running of the 10-day filing period. See United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976); United States v. Healy, 376 U.S. 75, 77-78, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). In United States v. Ibarra, 502 U.S. 1, 4-7, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991), the Supreme Court applied that long-standing principle to a motion for rehearing, even though Rule 4(b) did not list that motion as one that delays the running of the 10-day filing period. We hold that this principle applies equally to a Rule 35(c) motion. See, e.g., United States v. Morillo, 8 F.3d 864, 868-69 (1st Cir.1993) ("[W]hen ... a party to a criminal case files a timely motion under Fed.R.Crim.P. 35(c), asking the sentencing court to reconsider an issue in the case in a way that will, if successful, bring about an alteration of the defendant's substantive rights, then the filing of that motion renders the judgment nonfinal for purposes of appeal.").

The dissent's contention that "the plain wording of Rule 4(b) says that a Rule 35(c) motion does not delay the running of the 10-day filing requirement for a defendant's notice of appeal" is not supported by a reading of that rule. Rule 4(b)(5) merely clarifies that the filing of a notice of appeal during the period within which the district court can act to correct a sentence under Rule 35(c) neither renders that notice invalid nor deprives the district court of its authority to correct the sentence. That provision does not, as the dissent claims, presume that notices of appeal will always be filed within this time period; rather, it clarifies how such filings, when made, affect the proceedings. In fact, language clarifying the effect of Rule 35(c) motions on the time period for filing a notice of appeal could very easily have been included within Rule 4(b)(5). Its absence--and the rule's resultant silence on this issue--undermines the dissent's characterization of the rule as providing a "clear mandate" and justifies the application of the Ibarra rule in this context. ¹

The government argues that, even if Rule 35(c) generally extends the time to file an appeal, Barragan should not be allowed to use Rule 35(c) to challenge the sentence, because there is no dispute that the amended sentence imposed by the court is legally correct. This argument misses the point. The merit of a Rule 35(c) motion has no bearing on the question whether it renders a judgment non-final. See Morillo, 8 F.3d at 869 n. 6. ("The likelihood that appellant might prevail on his motion is irrelevant for purposes of determining the motion's suspensory effect."); see also Ibarra, 502 U.S. at 6-7, 112 S.Ct. 4 ("Undoubtedly some motions for reconsideration are so totally lacking in merit that the virtues of the rule established in Healy are not realized by delaying the 30-day period.... But there is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit, and which do not. Given this, it is far better that all such motions be subsumed under one general rule.").

The government next suggests that Barragan waived his right to contest the district court's modification of his sentence because he initially agreed that the district court had jurisdiction to modify that sentence. That argument, too, is unpersuasive. Barragan's counsel promptly informed the court by letter that he was mistaken in conceding the court's jurisdiction to modify the sentence. Thereafter, Barragan moved under Rule 35(c) to have the district court reimpose the original sentence, again arguing that the court lacked jurisdiction to modify that sentence. Under the circumstances, Barragan adequately preserved the issue. Moreover, even if Barragan did not preserve the issue, a party can challenge the court's jurisdiction at any time. Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1100 (9th Cir.1998) (Waiver "does not apply, however, when the issue is jurisdictional.") (emphasis in original).

B. District Court's Jurisdiction

Barragan argues that the district court did not have jurisdiction when it held the July 31, 1997 hearing on the government's June 3, 1997 motion to reconsider his sentence. He contends that this motion could have been made only under Rule 35(c) and that the district court lost its authority to act on the motion by waiting more than seven days after it originally imposed sentence. We consider de novo whether the district court had jurisdiction to resentence. See United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir.1991).

The government argues that it moved for "reconsideration" of defendant's original sentence pursuant to federal common law, not pursuant to Rule 35(c) and, thus, that the district court need not have complied with the temporal requirements of Rule 35(c). We agree that generally district courts do have "inherent authority" to decide motions for reconsideration or rehearing of...