U.S. v. Ridl, 93-2009

• Decision Date: 13 June 1994
• Docket Number: No. 93-2009,93-2009
• Citation: 26 F.3d 73
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ricky Allen RIDL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 73

26 F.3d 73

UNITED STATES of America, Plaintiff-Appellant, v. Ricky Allen RIDL, Defendant-Appellee.

No. 93-2009.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 18, 1994.

Decided June 13, 1994.

Cameron W. Hayden, Asst. U.S. Atty., Bismarck, ND, for appellant.

Rodney K. Feldner, Mandan, ND, for appellee.

Before BOWMAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge.

The government appeals from the district court's judgment granting Ricky Allen Ridl's motion for a reduction of his sentence originally imposed in September 1991. The district court granted the reduction based on a 1992 amendment to U.S.S.G. Sec. 3E1.1, which provides for an additional one-level reduction for acceptance of responsibility in cases where the base offense level is 16 or greater. The government argues that the district court erred in granting the motion because the amendment to U.S.S.G. Sec. 3E1.1 was not made retroactive and does not apply to Ridl. Ridl argues that the government's appeal is untimely and that we thus lack jurisdiction over this appeal. We conclude that the government's appeal is timely, and we vacate the district court's judgment and remand for reimposition of the original sentence.

The facts are not in dispute. In September 1991, the district court sentenced Ridl to 51 months of imprisonment after he pleaded guilty to armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a), (d). In December 1992, he filed a motion to reduce his sentence requesting an additional one-level decrease in his base offense level under the 1992 amendment to U.S.S.G. Sec. 3E1.1(b), which became effective in November 1992. On January 19, 1993, the district court entered an order granting Ridl's motion and reducing his sentence to 46 months of imprisonment.

On January 29, 1993, the government filed a motion for reconsideration. On February 18, 1993, before the court had ruled on the motion for reconsideration, the government filed a notice of appeal from the court's January 19, 1993, order. On March 15, 1993, the district court entered an order stating that, assuming it had jurisdiction, it denied the motion for reconsideration. On March 29, 1993, we dismissed the government's appeal as premature. On April 7, 1993, the government filed a new notice of appeal from the court's January 19, 1993, judgment and its March 15, 1993, order.

Ridl argues that the government's February 18, 1993, notice of appeal divested the district court of jurisdiction to rule on the government's motion for reconsideration, and that the district court's March 15, 1993, order was entered without authority and is thus unappealable. He also argues that the government's attempt to appeal the January 19, 1993, judgment is untimely because more than thirty days elapsed between the January 19, 1993, judgment and the government's April 7, 1993, notice of appeal. We disagree.

The government must file its notice of appeal in a criminal case within thirty days after the entry of (1) the judgment or order appealed from, or (2) a notice of appeal by any defendant. Fed.R.App.P. 4(b). A timely request for rehearing or reconsideration tolls the running of the time for filing an appeal in a criminal case. United States v. Woodruff, 596 F.2d 798, 799 (8th Cir.1979) (discussing United States v. Healy, 376 U.S. 75, 77-80, 84 S.Ct. 553, 554-556, 11 L.Ed.2d 527 (1964) (government's petition for rehearing), and United States v. Dieter, 429 U.S. 6, 7-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976) (government's motion to set aside dismissal)); see also United States v. Ibarra, --- U.S. ----, 112 S.Ct. 4, 5-6, 116 L.Ed.2d 1 (1991). The government's motion for reconsideration was timely and filed well within the thirty-day appeal period. See Healy, 376 U.S. at 78, 84 S.Ct. at 555. The government's motion thus postponed the commencement of the thirty-day period for appealing the January 19, 1993, judgment until after the motion for reconsideration had been ruled upon. ¹

Ridl also argues that the government's February 18 notice of appeal divested the district court of jurisdiction to rule on the government's motion for reconsideration and rendered the March 15 order a nullity, which cannot be appealed. While we have never addressed this precise issue, other circuit courts have addressed the issue and have concluded that the filing of the motion for reconsideration reinvested jurisdiction in the district court. See United States v. Greenwood, 974 F.2d 1449, 1467-69 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2354, 124 L.Ed.2d 262 (1993); United States v. Gargano, 826 F.2d 610, 612 (7th Cir.1987). We agree that this is the proper resolution of this issue.

This is consistent with the approach we took in United States v. Jones, 669 F.2d 559, 560-61 (8th Cir.1982), where we discussed the effect of a notice of appeal filed before the disposition of a timely posttrial motion. We held that a notice of appeal in a criminal case should follow and not precede disposition of posttrial motions. We concluded that a defendant convicted in a criminal case acts prematurely by filing a notice of appeal before ...