U.S. v. Thibodeaux
| Decision Date | 08 May 2000 |
| Docket Number | No. 99-40585,99-40585 |
| Citation | 211 F.3d 910 |
| Parties | (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MARK ERVIN THIBODEAUX, Defendant-Appellee |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Texas
Before WIENER, BENAVIDES and PARKER, Circuit Judges.
The Government appeals the sentence imposed on Mark Ervin Thibodeaux following a guilty plea conviction. We dismiss the appeal.
Thibodeaux pleaded guilty pursuant to a written plea agreement to one count of felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). Initially, the Government believed that two of Thibodeaux's prior convictions had occurred on the same date and counted as a single conviction. Based on that understanding, the plea agreement stated that Thibodeaux faced a possible maximum sentence of ten years in prison. The Government subsequently determined that the two convictions had occurred on different dates and contended that Thibodeaux should be sentenced to the mandatory fifteen year sentence provided in § 924(e)(1), irrespective of the plea agreement. The district court, disagreeing with the Government, sentenced Thibodeaux to ten years' imprisonment and three years' supervised release.
The Government appealed Thibodeaux's sentence. The Government may file a notice of appeal for review of an otherwise final sentence if, inter alia, the sentence was imposed in violation of law or was imposed as a result of an incorrect application of the sentencing guidelines. See 18 U.S.C. § 3742(b). However, "[t]he Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General." See id. Thibodeaux contends that this appeal should be dismissed because the Government has not demonstrated that it has the requisite authority to further prosecute this appeal. Although afforded an opportunity to file a reply brief after this issue was raised, the Government has not responded to Thibodeaux's § 3742(b) concerns by briefing the issue or by including in the record proof that it has in fact received authority to further prosecute the appeal.
This circuit has not stated expressly that the Government must demonstrate compliance with, or include in the record on appeal proof of compliance with, § 3742's approval requirement. The circuits which have addressed the issue have not spoken with one voice concerning when or how the Government must document § 3742 approval. Compare, e.g., United States v. Smith, 910 F.2d 326, 328 (6th Cir. 1990)( that, while approval is not jurisdictional, in the exercise of its supervisory authority the Sixth Circuit requires written proof of compliance dated not later than notice of appeal and filed not later than filing of the brief to avoid dismissal) with United States v. Petti, 973 F.2d 1441, 1446 n.9 (9th Cir. 1992)( that written proof of authorization submitted with Government's reply brief was sufficient to avoid dismissal of appeal) and United States v. Hendrickson, 22 F.3d 170, 172 n.1 (7th Cir. 1994)( that § 3742(b)'s requirement is not jurisdictional and that the court would not be divested of jurisdiction if the Government failed to secure § 3742(b) approval for appeal).
Section 3742 creates a comprehensive system for appellate review of sentences. S. Rep. No. 98-225, at 155 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3338. Congress designed the statute to focus the appellate courts' attention on those sentences for which review is crucial to the proper functioning of the sentencing guidelines and to provide a means to correct erroneous and clearly unreasonable sentences. Id. Congress determined that government appeals of sentences below the applicable guideline range were necessary to this system. Congress found:
If only the defendant could appeal his sentence, there would be no effective opportunity for the reviewing courts to correct the injustice arising from a sentence that was...
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