U.S. v. Carr, 90-2137

• Decision Date: 07 March 1991
• Docket Number: No. 90-2137,90-2137
• Parties: UNITED STATES of America, Appellant, v. Terry C. CARR and Mark Todd Carr, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 67

932 F.2d 67

UNITED STATES of America, Appellant, v. Terry C. CARR and Mark Todd Carr, Defendants, Appellees.

No. 90-2137.

United States Court of Appeals, First Circuit.

Heard March 7, 1991.

Decided May 6, 1991.

Cerise Lim-Epstein, Asst. U.S. Atty., with whom Wayne A. Budd, Boston, Mass., U.S. Atty., was on brief, for the U.S.

Robert D. Richman, Boston, Mass., Federal Defender Office, for appellee Terry C. Carr.

Margaret H. Carter, Salem, Mass., with whom James L. Sultan and Rankin & Sultan, Boston, Mass., were on brief, for appellee Mark Todd Carr.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

The United States appeals from the district court's judgment sentencing defendants-appellees Terry C. Carr and her husband Mark Todd Carr. The government argues that the district court's downward departure from the Sentencing Guidelines' range was improper. The Carrs pled guilty to charges of mail fraud, in violation of 18 U.S.C. Secs. 2 and 1341, for their alleged participation in a scheme to defraud the Liberty Mutual Insurance Company by submitting fraudulent claims. The government, pursuant to the plea agreement, recommended the least restrictive sentence within the Guidelines for both defendants. At sentencing on July 10, 1990, the probation officer found the applicable Guidelines' range for Terry Carr to be 15-21 months and 12-18 months for Mark Carr. The probation officer recommended enhancement of Terry Carr's sentence for being an "organizer, leader, manager or supervisor." The district court agreed with the government that Terry Carr was not such a leader, and thus concluded that the Guidelines' range for her should be 10-16 months. Defendants requested a downward departure based on their responsibilities to their four-year-old son, Patrick. The district court departed downward and sentenced Terry Carr to a community treatment facility for ten months and Mark Carr to five months in prison and five months in a community treatment facility. ¹ The district court also imposed on each defendant a twenty-four month period of supervised release and ordered payment of restitution not to exceed $20,000 and special assessments of $500.

The government contends that the circumstances on which the district court relied--the sentence's fairness in comparison with other sentences imposed by the court and the defendants' family responsibilities to their four-year-old son--do not constitute legitimate grounds for a downward departure. See United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). The defendants respond that this court does not have jurisdiction to hear this appeal because the government did not file its notice of appeal until September 21, 1990, forty-one days after August 10, 1990--the date the judgments including sentences were entered on the criminal docket. Fed.R.App.P. 4(b) provides that the government's notice of appeal must be filed "within 30 days after the entry of ... the judgment or order appealed from...." ² To this jurisdictional challenge, the government replies that it filed a "Motion for Reconsideration of Sentencing" on July 31, 1990, ³ and that the pendency of this motion rendered the docketed judgments including sentences nonfinal, for purposes of commencing the thirty-day period for filing its appeal, until the district court summarily denied the motion on August 27, 1990. See United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (per curiam ) (involving appeal from order dismissing indictment). Under this theory, the thirty-day period prescribed in Fed.R.App.P. 4(b) began running only on August 27, 1990. The government's notice of appeal from both the sentences and the denial of the motion for reconsideration was filed less than thirty days later. Defendants counter that, under the recently amended Fed.R.Crim.P. 35, and also under 18 U.S.C. Sec. 3582(c), the district court lacked jurisdiction to entertain the government's motion for reconsideration once judgment was entered. The fact that the motion remained unresolved on August 10, 1990, therefore, did not render the judgments non-final when docketed on that date.

I.

We turn first to the question of whether the government's appeal was timely. We hold that it was.

Congress amended Fed.R.Crim.P. 35 as part of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, Sec. 215(b), 98 Stat. 1837, 2015. Prior to the Sentencing Reform Act, Rule 35(a) permitted the district court to correct an illegal sentence at any time. The Sentencing Reform Act repealed this provision and the current Rule 35(a) now expressly authorizes the court to correct a sentence only on remand after the court of appeals determines that the sentence was imposed in violation of law or as the result of an incorrect application of the Sentencing Guidelines. The legislative history states that Rule 35 was amended "in order to accord with the provision of proposed section 3742 of title 18 concerning appellate review of sentence." S.Rep. No. 225, 98th Cong., 2d Sess. 158, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3341. Defendants argue that the change effectively withdrew from the district court all power to reconsider and modify a sentence once imposed (i.e., from the time docketed). See United States v. Cook, 890 F.2d 672, 674-75 (4th Cir.1989). The sentencing statute, 18 U.S.C. Sec. 3582(c), lends some support to this argument in respect to sentences to prison: "The court may not modify a term of imprisonment once it has been imposed," except in limited circumstances not relevant here.

Despite the above changes, the government contends that the district court nevertheless retains some inherent power to correct sentences--and that we should, therefore, continue to apply the well established rule that, where a timely reconsideration motion was filed, the thirty-day appeal period did not begin to run until the denial of the motion. United States v. Dieter, 429 U.S. at 8, 97 S.Ct. at 19. In Dieter, a pre-guideline case, the Supreme Court unanimously reaffirmed its ruling in United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), that the dispositive date for commencement of the relevant appeal period was the date when a timely rehearing petition in the district court was denied, rather than the date of the order itself. The Court explained as follows:

The Court of Appeals misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending. 376 U.S., at 78-79 . [footnote 3 in original: The Court of Appeals' concern with the lack of a statute or rule expressly authorizing treatment of a post-dismissal motion as suspending the limitation period ignores our having grounded our decision in Healy, not on any express authorization (which was similarly lacking in Healy ), but rather on "traditional and virtually unquestioned practice." 376 U.S., at 79, 84 S.Ct., at 556.] To have held otherwise might have prolonged litigation and unnecessarily burdened this Court, since plenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing. Id., at 80 . The fact that appeals are now routed to the courts of appeals does not affect the wisdom of giving district courts the opportunity promptly to correct their own alleged errors, and we must likewise be wary of imposing added and unnecessary burdens on the courts of appeals. These considerations fully apply whether the issue presented on appeal is termed one of fact or of law, and the Court of Appeals' law/fact distinction--assuming such a distinction can be clearly drawn for these purposes--finds no support in Healy. It is true that the Government's postdismissal motion was not captioned a "petition for rehearing," but there can be no doubt that in purpose and effect it was precisely that, asking the District Court to "reconsider [a] question decided in the case" in order to effect an "alteration of the rights adjudicated." Department of Banking v. Pink, 317 U.S. 264, 266 [63 S.Ct. 233, 234, 87 L.Ed. 254] (1942).

Dieter, 429 U.S. at 8-9, 97 S.Ct. at 19-20.

Notwithstanding enactment of the Sentencing Guidelines, including 18 U.S.C. Sec. 3582(c), and notwithstanding the modification of Rule 35, two courts of appeals have recently recognized an inherent power in the district court to correct acknowledged errors in sentencing. ⁴ In United States v. Rico, 902 F.2d 1065 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990), defendant and government reached a plea agreement which called for a specific sentence, and the court, intending to abide by the agreement, mistakenly imposed a less severe sentence. Three days later, the government brought the mistake to the court's attention and requested a correction. While emphasizing the narrowness of its decision, the Second Circuit held that the district court had inherent power to correct the "inadvertent" error within the time fixed for filing an appeal. Id. at 1068. Compare United States v. Uccio, 917 F.2d 80, 84 (2d Cir.1990).

In Cook, 890 F.2d 672, the district court had inadvertently omitted a term of imprisonment from a sentence of supervised release and community confinement under the Sentencing Guidelines, Sec. 5C2.1(c)(3). Recognizing its error, the court sua sponte resentenced the defendant three weeks later in accordance with the Guidelines. The Fourth Circuit, while stressing that its holding was "a very narrow one," held that the district court had inherent power to modify the sentence "to correct an acknowledged and obvious mistake" during...