U.S. v. Fuller

• Decision Date: 12 June 2003
• Docket Number: Docket No. 02-1347.,Docket No. 02-1155L.
• Citation: 332 F.3d 60
• Parties: UNITED STATES of America, Appellee, v. John NMN FULLER, Leyton Wint, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

332 F.3d 60

UNITED STATES of America, Appellee, v. John NMN FULLER, Leyton Wint, Defendants-Appellants.

Docket No. 02-1155L.

Docket No. 02-1347.

United States Court of Appeals, Second Circuit.

Argued: April 3, 2003.

Decided: June 12, 2003.

COPYRIGHT MATERIAL OMITTED

Colleen P. Cassidy, Legal Aid Society, Federal Defender Division Appeals Bureau, New York, N.Y., for Defendant-Appellant Fuller.

John Fuller, White Deer, Pa., submitted a pro se brief.

Richard D. Willstatter, Green & Willstatter, White Plains, N.Y., for Defendant-Appellant Wint.

Justin S. Weddle, Asst. U.S. Atty., New York, N.Y. (James B. Comey, U.S. Atty., Christine H. Chung, Asst. U.S. Atty., New York, N.Y., on the brief), for Appellee.

Before: WALKER, Chief Judge, OAKES and NEWMAN, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal in a criminal case primarily concerns three narrow issues, one concerning appellate procedure and two concerning sentencing. The first is the appropriate disposition in a criminal case of an appeal filed after the expiration of the applicable time limit due to defense counsel's oversight. The second is the permissible use of a defendant's criminal conduct in making "horizontal" and "vertical" departures under the Sentencing Guidelines. The third is the methodology for imposing sentences on multiple counts. Leyton Wint and John NMN Fuller appeal from the judgments of the District Court for the Southern District of New York (Colleen McMahon, District Judge), entered October 24, 2001, and February 14, 2002, respectively. Wint was sentenced primarily to imprisonment for 41 months, and Fuller was sentenced primarily to imprisonment for 151 months, following their convictions for firearms offenses. We conclude that Wint's appeal should be dismissed and the judgment should be remanded for entry of a new judgment, and Fuller's judgment should be remanded for resentencing.

Background

Charges and convictions. Fuller and Wint were both charged with offenses arising out of a gun-running operation in which they traveled to South Carolina, induced individuals there to purchase firearms, and then transported the guns to New York for resale, in violation of 18 U.S.C. §§ 2, 371, 922(a)(1)(A), 922(a)(3) and 924(n) (1994 & Supp.1999). The offense activity was alleged to have occurred between 1996 and 1999. In addition, Fuller was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1994) and, after becoming a fugitive, with bail-jumping, in violation of 18 U.S.C. § 3146 (1994). Wint pled guilty to the gun-running charges. Fuller pled guilty to bail-jumping and went to trial on the firearms charges. The jury convicted him of being a felon in possession of a firearm and could not reach a verdict on the gun-running charges.

Wint's sentence and appeal. The District Court sentenced Wint to imprisonment for 41 months, to run consecutively to a prior federal court sentence. The Guidelines calculations need not be detailed since they are not relevant to our disposition of Wint's pending appeal. Judgment in Wint's case was entered October 24, 2001. In a letter to the District Court dated two days later, Wint's counsel asked for an extension of time to file a notice of appeal. On October 26, 2001, Judge McMahon endorsed the motion "Granted." Neither the letter request nor the Court's endorsement specified the duration of the extension. On May 16, 2002, nearly seven months later, Wint's counsel filed a notice of appeal.

Fuller's sentence. The District Judge began the Guidelines calculation of Fuller's sentence with a base offense level of 14 for the offense of being a felon in possession of a firearm. See U.S.S.G. § 2K2.1(a)(6) (2000). Deeming the gun-running activity to be relevant conduct, she found by a preponderance of the evidence that between 25 and 49 guns were involved, resulting in a 5-level enhancement. See id. § 2K2.1(b)(1)(E). She then added 4 levels for Fuller's leadership role, see id. § 3B1.1(a), 2 levels for obstruction of justice (bail-jumping), see id. § 3C1.1,¹ and, in an adjustment challenged on appeal, 2 levels for his use of a minor in the course of the offense conduct, see id. § 3B1.4. This last enhancement was based on a finding that Wint was less than eighteen when Fuller first recruited him for the gun-running activity. These enhancements brought the adjusted offense level to 27. In the initially applicable Criminal History Category ("CHC") II, the sentencing range would have been 78-97 months.

Judge McMahon then made two departures. First, she made a "vertical" departure, increasing the adjusted offense level by 2 levels because she considered the 2-level obstruction of justice enhancement inadequate to reflect the full extent of Fuller's conduct. In addition to becoming a fugitive, he had threatened a witness and suborned the witness's perjury. Second, in an action challenged on this appeal, she made a "horizontal" departure, increasing Fuller's CHC from II to IV. Based on Fuller's possession of a .357 magnum firearm and his having bartered guns for drugs, Judge McMahon concluded that CHC II did not adequately reflect the seriousness of Fuller's past conduct. See U.S.S.G. § 4A1.3.

The combination of an adjusted offense level of 29 and CHC IV yielded a sentencing range of 121-151 months. Judge McMahon imposed a sentence of imprisonment for 151 months, comprising 121 months on the felon-in-possession charge and a consecutive sentence of 30 months on the bail-jumping charge. The 151-month sentence runs concurrently with the undischarged portion of a state sentence. Fuller filed a timely notice of appeal.

Discussion

I. Wint's Appeal

There is no dispute that Wint requested his counsel to file a notice of appeal and that counsel did not file a notice until several months after expiration of the maximum allowable 40-day period. See Fed. R.App. P. 4(b) (10 days after entry of judgment for filing notice of appeal, plus up to 30 days upon grant of extension for excusable neglect or good cause). The parties are also in agreement that appellate time limits are jurisdictional, see Browder v. Director, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); United States v. Rodgers, 101 F.3d 247, 252 (2d Cir.1996), and that counsel's failure to file a timely appeal in a criminal case, when requested by a defendant, constitutes ineffective assistance of counsel, entitling the defendant to relief, see Garcia v. United States, 278 F.3d 134, 137 (2d Cir.2002). The issue is what relief is appropriate.

Wint contends that after dismissing the appeal for lack of jurisdiction, we should remand for resentencing. The Government urges a remand for entry of a new judgment to replace the existing judgment, which the Government concedes could be successfully challenged under 28 U.S.C. § 2255 (2000). Courts granting relief for a successful section 2255 motion challenging counsel's ineffectiveness in not pursuing a direct appeal have used either the resentencing remedy, see Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982), or the more limited remedy of entry of a new judgment, see United States v. Stearns, 68 F.3d 328, 331 (9th Cir.1995), abrogated on other grounds, Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). We have given a district court the choice of remedies. See Garcia, 278 F.3d at 138.

Our initial question is whether, on an appeal over which we lack appellate jurisdiction, our only option is to dismiss for lack of jurisdiction and take no further action. We think we are not so limited in making an appropriate disposition. We regard lack of appellate jurisdiction as the absence of authority to adjudicate the merits of an appeal. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 21, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) ("[N]o statute could authorize a federal court to decide the merits of a legal question not posed in an Article III case or controversy.").

In other contexts where courts have lacked appellate jurisdiction, they have taken action other than simply dismissing the appeal. The most obvious example is the disposition prescribed by the Supreme Court for an appeal over which an appellate court ceases to have jurisdiction because of mootness. In that circumstance, the appellate court has the "duty... to set aside the decree below and to remand the cause with directions to dismiss." Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 (1936); see United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950). As the Supreme Court has stated, "`If a judgment has become moot [while awaiting review], this Court may not consider its merits, but may make such disposition of the whole case as justice may require.'" U.S Bancorp, 513 U.S. at 21-22 (quoting Walling v. James V. Reuter, Inc., 321 U.S. 671, 677, 64 S.Ct. 826, 88 L.Ed. 1001 (1944)) (alteration in original). Recognizing that when a case becomes moot while on appeal we lack jurisdiction, we have regularly responded to mootness by dismissing the appeal and at the same time following the Duke Power/Munsingwear instruction by vacating the judgment and remanding with directions to dismiss the complaint. See, e.g., Van Wie v. Pataki, 267 F.3d 109, 115-16 (2d Cir.2001); Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 94 F.3d 96, 102 (2d Cir.1996); see also Brooks v. Travelers Insurance Co., 297 F.3d 167, 172 (2d Cir.2002) (dismissing appeal and vacating order on appeal); Haley v. Pataki, 60 F.3d 137, 142 (2d Cir.1995) (same); Bragger v. Trinity Capital Enterprise Corp., 30 F.3d 14, 17 (2d Cir.1994) (dismissing appeal and remanding with directions to vacate).

We have also ruled that where the filing in a district court of a so-called 10-day motion, see Fed.R.Civ.P. 59, destroyed our jurisdiction to adjudicate the appeal, we had a limited jurisdiction not only to rule that we lacked...