U.S. v. Green

• Decision Date: 06 May 2005
• Docket Number: No. 04-5105.,04-5105.
• Citation: 405 F.3d 1180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darvell Sherrod GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

405 F.3d 1180

UNITED STATES of America, Plaintiff-Appellee, v. Darvell Sherrod GREEN, Defendant-Appellant.

No. 04-5105.

United States Court of Appeals, Tenth Circuit.

May 6, 2005.

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F.L. Dunn, III, Tulsa, OK, for Defendant-Appellant.

Timothy L. Faerber, United States Attorney's Office for the Northern District of Oklahoma, Tulsa, OK, for Plaintiff-Appellee.

Before EBEL, McKAY and HENRY, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, we hold that the district court did not have jurisdiction under Fed.R.Crim.P. 35(a) to resentence Defendant more than seven days after the court orally imposed an earlier sentence. We also conclude that Defendant's waiver of his appellate rights — made before the Supreme Court issued its opinion in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) — is enforceable and bars our consideration of any claims he may assert under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Defendant pled guilty to interfering with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). The district court sentenced him to fifty-one months' imprisonment on the former count, and eighty-four months' imprisonment on the latter count. More than seven days later, the district court sua sponte opted to resentence Defendant to forty-one months' imprisonment on the former count, with all other terms of the new sentence identical to those of the original. Defendant timely appealed, and defense counsel filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We exercise jurisdiction over his appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Our Anders review of the proceedings reveals no error in Defendant's conviction, and we accordingly AFFIRM that conviction. However, because the district court lacked jurisdiction to resentence Defendant, and Defendant's waiver of his appellate rights encompassed all arguments against his original sentence revealed by our Anders review, we REMAND with instructions that the district court vacate Defendant's later sentence and reinstate Defendant's original sentence.

I. Background

Defendant's plea agreement provided that "Defendant agrees to waive all appellate rights except those relating to issues raised by the Defendant and denied by the District Court regarding the application of the Sentencing Guidelines." Similarly, Defendant's "Petition to Enter Pleas of Guilty" states, "I have agreed to waive all rights to appeal ... save and except those rights of appeal relating to issues raised by me and denied by the Court regarding the application of the Sentencing Guidelines."

At Defendant's guilty plea hearing, the prosecutor described the plea agreement for the record, stating, "There is ... [an] appellate's [sic] right waiver, a limited one, that essentially waives all appellate rights with the exception of those issues regarding application to sentencing guidelines that are objected to and overruled by the Court." Later in the plea hearing, the district court asked Defendant:

Do you understand that in your plea agreement there is a limited waiver of appellate rights? ... Do you understand that under that waiver, you agree to waive all appellate rights except for issues raised by you and denied by me regarding application of the sentencing guidelines and also any claims ...?

Defendant stated that he understood both questions.

The district court orally sentenced Defendant on June 24, 2004. However, the district court judge never signed a written version of the judgment, and therefore the court never entered this judgment onto its docket.

The same day that the district court orally sentenced Defendant, the Supreme Court issued its opinion in Blakely. On June 30, 2004, Defendant submitted a Motion to Correct Sentence pursuant to Fed.R.Crim.P. 35(a),¹ alleging that the sentence "was the result of clear error" because

the sentencing court factually determined and applied a guideline sentencing enhancement pursuant to USSG § 2B3.1(b)(2)(F), i.e. a threat of death was made during the commission of the robbery, which fact caused an increase in the defendant's sentence but which had not been alleged in the Indictment, proven beyond a reasonable doubt, nor stipulated to by defendant in the Plea Agreement nor at the time he entered his plea of guilty.

On July 6, 2004, the district court scheduled a hearing on Defendant's Rule 35(a) motion for July 9. At that hearing, the court found that Defendant had stipulated to the facts necessary for the threat of death adjustment. However, after making this finding, the court opted to resentence Defendant without applying the adjustment. The court determined that because the threat of death adjustment in U.S.S.G. § 2B3.1(b)(2) was part of a list of adjustments that addressed possessing, brandishing, using, or discharging a firearm, the threat of death adjustment was a weapons enhancement that should not be applied in conjunction with a sentence under 18 U.S.C. § 924(c). See U.S.S.G. § 2K2.4, comment. n. 4.

Accordingly, the court found that it had made an error in including the threat of death adjustment in Defendant's June 24 sentence, and stated:

The Court denies the defendant's motion to correct the sentence under Blakely. The court, sua sponte, based upon its desire to prevent a manifest injustice, hereby vacates its sentence pronounced on June 24th, 2004, and we come now for resentencing....

The court resentenced defendant to forty-one months' imprisonment on the robbery count and to the mandatory eighty-four months' imprisonment on the firearms count. Thus, Defendant's July 9 sentence is ten months shorter than his June 24 sentence. Following the July 9 sentencing, the judgment in this case was entered on the district court's docket on July 16, 2004.

II. Analysis

A. The District Court's Jurisdiction to Resentence Defendant

"Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). "For that reason, every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it." Id. (quotations omitted). In general, we must address questions pertaining to our or a lower court's jurisdiction before proceeding to the merits. See Tenet v. Doe, ___ U.S. ___, ___ n. 4, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82, ___ n. 4 (2005).² Accordingly, we begin by analyzing the district court's jurisdiction to resentence Defendant on July 9, 2004.

"A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so," so "[a] district court does not have inherent power to resentence defendants at any time." United States v. Blackwell, 81 F.3d 945, 947, 949 (10th Cir.1996) (quotations omitted). Thus, in the case at bar the district court lacked jurisdiction to resentence Defendant based upon its "desire to prevent a manifest injustice."

The district court also did not have jurisdiction to resentence Defendant under any statutory provision. 18 U.S.C. § 3582(c) provides only three jurisdictional grants under which a court may "modify a term of imprisonment once it has been imposed."³ A court may modify a sentence: (1) in certain circumstances "upon motion of the Director of the Bureau of Prisons"; (2) "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"; or (3) in cases where the applicable sentencing range "has subsequently been lowered by the Sentencing Commission." Id. at § 3582(c)(1)(A), (c)(1)(B), (c)(2). Avenues one and three are inapposite to the resentencing that the district court performed in the instant case. Avenue two offers Fed.R.Crim.P. 35 as the only potential source of authority to support the district court's modification of Defendant's sentence.

Fed.R.Crim.P. 35 empowers a court to correct or reduce a Defendant's sentence in two specified instances. Section (a) provides that "[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."⁴ Fed.R.Crim.P. 35(a) (emphasis added). Section (b) grants a court authority to reduce a sentence to reflect a defendant's post-sentencing substantial assistance. Fed.R.Crim.P. 35(b). Section (b) is inapposite to the instant case. Thus, the dispositive question in determining whether the district court had jurisdiction to resentence Defendant is whether Fed.R.Crim.P. 35(a) divests a district court of jurisdiction to correct sentencing errors more than seven days after sentencing. The history of the rule and case law interpreting the provision make clear that Rule 35(a) provides a district court with jurisdiction to correct sentencing errors for only seven days after the court first orally sentenced a defendant.

Before the Sentencing Reform Act of 1984 became effective, Rule 35 allowed a district court to "correct an illegal sentence at any time" and to "correct a sentence imposed in an illegal manner" within 120 days of certain triggers. See Fed.R.Crim.P. 35, Rule Applicable to Offenses Committed Prior to Nov. 1, 1987. The Sentencing Reform Act deleted these provisions, however, such that "the only circumstances in which a sentence could then be reduced were on remand after appeal or upon motion of the government to recognize a defendant's cooperation." Wright, King & Klein, Federal...