U.S. v. Moore, 95-3121

• Decision Date: 07 May 1996
• Docket Number: No. 95-3121,95-3121
• Citation: 83 F.3d 1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1231

83 F.3d 1231

UNITED STATES of America, Plaintiff-Appellee, v. Calvin MOORE, Defendant-Appellant.

No. 95-3121.

United States Court of Appeals Tenth Circuit.

May 7, 1996.

Leon J. Patton, Assistant United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

David J. Phillips, Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.

Before SEYMOUR, BRORBY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The district court resentenced the appellant Calvin Moore pursuant to 28 U.S.C. § 2255 after his original counsel failed to file a timely notice of appeal. Upon resentencing, the district court effectively ruled that its jurisdiction limited it to imposition of the original sentence, precluded rehearing of previously considered arguments and motions, and barred consideration of new arguments and new evidence. The district court's jurisdiction, however, is not so limited and this court remands to the district court for further proceedings.

I.

Appellant Calvin Moore was charged in an indictment alleging that over the period from October 3, 1991, to March 5, 1992, he knowingly and intentionally conspired to distribute a substance containing cocaine base ("crack cocaine") and did distribute crack cocaine on three separate occasions, in violation of 21 U.S.C. §§ 841, 846. On December 15, 1992, Moore pleaded guilty to count one of the indictment, conspiracy to distribute.

The United States District Court for the District of Kansas sentenced Moore to a term of imprisonment of 188 months on April 2, 1993. Moore's trial counsel filed objections to the presentence report that were overruled by the district court in imposing sentence. No timely notice of appeal was filed, but Moore submitted a motion to file an untimely notice of appeal. Because that motion was untimely filed 100 days after the entry of Moore's sentence, the district court denied the motion. See Fed. R.App. P. 4(b).

Moore next filed a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Moore alleged ineffective assistance of counsel for failure to file an appeal following his original sentencing, errors by the district court in enhancing his base-offense level, and a challenge to the constitutionality of the Sentencing Guidelines. The district court determined that Moore's original counsel was ineffective, resulting in the failure to perfect an appeal. The district court then determined that the proper remedy was to resentence Moore enabling him to perfect an appeal. In addition, the district court appointed the federal public defender as Moore's new counsel.

Moore's newly appointed counsel filed a new set of objections to the presentence report. In this new set of objections, Moore alleged that his trial counsel was ineffective not only in failing to perfect his appeal but also in failing to properly defend him at his sentencing. He reasserted objections to specific adjustments in his base-offense level made at the original sentencing and advanced new arguments based upon additional evidence he claimed had come to light since the first sentencing.

At the resentencing hearing, Moore sought to introduce the new evidence and to make the additional arguments concerning his base-offense level. In the face of these new matters, the district court rescheduled the hearing. After consideration of memoranda directed at the court's jurisdiction, the district court concluded that it had no jurisdiction or power to consider new evidence or expanded objections not presented at the original sentencing. The premise of this conclusion was that Moore was only entitled to be placed in the same position he would hold had his original counsel perfected an appeal. The district court then sentenced Moore consistent with the original sentence and Moore perfected this appeal.

II.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). This court reviews the district court's ruling on a jurisdictional question de novo. FDIC v. Hulsey, 22 F.3d 1472, 1479 (10th Cir.1994).

The district court was correct to conclude that resentencing under 28 U.S.C. § 2255 is the proper remedy for a criminal defendant who has had ineffective assistance of counsel in failing to perfect an appeal. See United States v. Davis, 929 F.2d 554, 557 (10th Cir.1991); Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir.1990). In Davis, this court held that resentencing enables the defendant to perfect an appeal. 929 F.2d at 557. The court has expressly noted that the purpose of resentencing is to place the defendant "back into the position he would have been had counsel perfected a timely notice of appeal." United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir.1991).

Notwithstanding this expression, nothing in Davis, Abels, or Saucedo in any way limits the jurisdictional power of a district court in conducting a resentencing pursuant to 28 U.S.C. § 2255. Instead, these cases merely prescribe the remedy to be given to a defendant following a finding of ineffective assistance of counsel in failing to perfect an appeal. The only jurisdictional concern in Davis was providing a basis for appellate jurisdiction. 929 F.2d at 557. Resentencing in order to allow a criminal defendant to timely file a notice of appeal is the remedy to secure appellate jurisdiction over the defendant's case. Id. Davis, Abels, and Saucedo do not restrict the jurisdiction of the sentencing court to only those issues and the evidence raised at the original sentencing.

In support of the position taken by the district court here, the United States analogizes to cases under Fed.R.Crim.P. 35. The authority granted under Rule 35(c), however, is expressly narrow. ¹ United States v. Warner, 23 F.3d 287, 290 (10th Cir.1994). The district court here correctly noted that the particulars of Rule 35, which allows limited sentence correction within seven days, do not apply in the circumstances of Moore's resentencing; its jurisdiction arose more than seven days subsequent to the original sentencing under a § 2255 motion. Davis, Abels, and Saucedo recognize that 28 U.S.C. § 2255 grants a sentencing court the power to vacate the original sentence and impose a new sentence upon a motion that may be made on a number of grounds and at any time. ² Considering these differences, it is clear that Rule 35 is not a guide for 28 U.S.C. § 2255.

Moore asserts that the district court was required to resentence him de novo. His authorities for this, however, are appellate decisions that corrected particular sentencing errors and remanded. See, e.g., United States v. Ortiz, 993 F.2d 204, 207-08 (10th Cir.1993); United States v. Smith, 930 F.2d 1450, 1455-56 (10th Cir.), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). Here, the district court itself vacated Moore's original sentence pursuant to 28 U.S.C. § 2255. In contrast to the cases cited by Moore, at this stage in the instant case, this court is not considering the type of sentencing error that would mandate de novo resentencing on any issue upon remand. Compare Smith, 930 F.2d at 1456 (vacating sentence and remanding for de novo sentencing) with United States v. Davis, 912 F.2d 1210, 1215 (10th Cir.1990) (affirming sentence and retaining jurisdiction but requiring the district court to explain fully its Sentencing Guidelines departure decision).

Although the vacation of the sentence was here ordered by the district court, the same court that will resentence Moore, analogizing to procedures following vacation and remand by an appellate court is instructive. As this court has held, when a defendant's sentence is vacated on appeal and remanded for new sentencing, the lower court must begin anew with de novo proceedings. United States v. Ortiz, 25 F.3d 934, 935 (10th Cir.1994). The court went on to clarify that the de novo resentencing "permits the receipt of any relevant evidence the court could have heard at the first sentencing hearing." Id. (emphasis added); United States v. Warner, 43 F.3d 1335, 1340 (10th Cir.1994). As a consequence, the court on remand has the discretion to entertain evidence that could have been presented at the original sentencing even on issues that were not the specific subject of the remand. See United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995). This is consistent with the parameters of what has been labeled "the mandate rule": where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal. ³ See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).

The First Circuit has explained that the mandate rule, which generally requires trial court conformity with the articulated appellate remand, is a discretion-guiding rule...