United States v. McGaughy

• Decision Date: 29 February 2012
• Docket Number: No. 11–2030.,11–2030.
• Citation: 670 F.3d 1149
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Anthony McGAUGHY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

670 F.3d 1149

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Anthony McGAUGHY, Defendant–Appellant.

No. 11–2030.

United States Court of Appeals, Tenth Circuit.

Feb. 29, 2012.

Scott M. Davidson, The Appellate Law Office of Scott M. Davidson, Ph.D., Esq., Albuquerque, NM, for Appellant.

David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney with him on the brief), Office of the United States Attorney, Albuquerque, NM, for Appellee.

Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and FREUDENTHAL, Chief District Judge ^*.TYMKOVICH, Circuit Judge.

This case requires us to consider a district court's subject-matter jurisdiction to re-sentence a defendant under Rule 35 of the Federal Rules of Criminal Procedure after 14 days have passed from sentencing. We hold the 14–day limitation is jurisdictional and precludes a district court from acting on a Rule 35 motion after 14 days have passed.

Appellant Michael McGaughy pleaded guilty to possession with intent to distribute marijuana, and the district court sentenced him to 46 months' imprisonment. Months later, McGaughy filed a motion under § 2255 motion alleging ineffective assistance of counsel at sentencing and asking for re-sentencing. The district court conferred informally with the parties, and the government agreed to re-sentencing.

At re-sentencing, the district court again sentenced McGaughy to 46 months' imprisonment, and dismissed the § 2255 motion as moot.

McGaughy then filed another motion to correct sentence under both Rule 35(a) and § 2255—this time arguing that at re-sentencing the government presented materially false information regarding his efforts to cooperate with the government before pleading guilty. The district court denied the motion.

The district court's re-sentencing raises three related issues. First, whether the court retained jurisdiction to re-sentence McGaughy under § 2255 because it never granted the petition, instead dismissing it as moot after re-sentencing. Next, whether the district court had subject-matter jurisdiction to rule on McGaughy's Rule 35(a) claim after the Rule's 14–day time limit lapsed. Finally, whether the district court properly denied McGaughy's second § 2255 claim. We conclude the district court had jurisdiction to re-sentence McGaughy, but that McGaughy's challenge to his re-sentencing is untimely because Rule 35's 14–day time limitation is jurisdictional. We agree with the district court that the second § 2255 motion was procedurally defaulted.

We therefore AFFIRM the district court's denial of McGaughy's § 2255 claim, VACATE the district court's denial of his Rule 35(a) claim, and REMAND with instructions for the district court to dismiss the Rule 35(a) claim for lack of jurisdiction.

I. Background

Michael McGaughy is a trucker based in California. In October 2007, he drove his rig into the Port of Entry in Gallup, New Mexico. Officers at the Port of Entry selected McGaughy's rig for a safety inspection. The officers discovered several boxes containing marijuana and arrested McGaughy. In a two-count indictment, McGaughy was charged with possession of more than 100 kilograms of marijuana with intent to distribute, and conspiracy to do the same.

The government offered McGaughy the opportunity to cooperate in the prosecution of an alleged co-conspirator in exchange for a plea agreement and a government request for the court to depart downward from the United States Sentencing Guidelines range. McGaughy eventually attempted to accept this offer. The government revoked the offer, however, on the grounds that McGaughy's testimony was no longer necessary to its prosecution of the coconspirator.

The parties ultimately reached a plea agreement in which McGaughy pleaded guilty to the possession charge. The agreement stipulated to McGaughy's minimal role and acceptance of responsibility but did not mention his attempted cooperation.

At sentencing, pursuant to the plea agreement and McGaughy's pre-sentence report, the court calculated McGaughy's offense level at 21. McGaughy's criminal history category was level IV, but the court lowered it to level III, based on the pre-sentence report's finding that level IV overstated the severity of McGaughy's past criminal conduct. McGaughy did not seek a downward departure. The court therefore sentenced him to 46 months' imprisonment, at the bottom of the applicable guidelines range.

Later, McGaughy timely filed a motion seeking habeas relief under § 2255. ¹ He alleged his attorney's failure to file a downward departure motion at sentencing constituted ineffective assistance of counsel, and he requested re-sentencing. The government initially opposed the motion. The court found the motion was potentially meritorious and ordered the record expanded. In light of this finding, the government agreed to re-sentencing.

The court never formally granted McGaughy's § 2255 motion. Instead, it issued an order vacating McGaughy's sentence and ordering re-sentencing. The order stated McGaughy could submit a sentencing memorandum and request a downward departure, and that both parties could submit evidence at the re-sentencing. McGaughy did so.

At re-sentencing the government recommended the court reimpose McGaughy's original 46–month sentence. McGaughy argued for a downward departure based on his attempted cooperation with the government, among other grounds. The court found McGaughy “offered to cooperate, but did not in fact cooperate.” R., Vol. 1, Doc. 152 at 11 (sealed). The court again sentenced McGaughy to 46 months' imprisonment. The district court later dismissed McGaughy's § 2255 motion, on the grounds that the requested relief—resentencing—had already been given.

Following re-sentencing, McGaughy filed a motion to correct sentence, which included a claim under Federal Rule of Criminal Procedure 35(a) and a second § 2255 claim. Rule 35(a) states: “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(a). In his motion, McGaughy argued the court based his sentence on materially false information provided by the government at re-sentencing. Specifically, he argued the government implied it was McGaughy, rather than the government, that reneged on the cooperation offer. He contended 18 U.S.C. § 3553 required the court to take into account his attempted cooperation, and that, since the court did not do so, it should vacate the sentence and hold another re-sentencing.

The district court denied McGaughy's motion. The court found Rule 35(a) was not an appropriate vehicle for relief because the rule was designed to correct arithmetical errors and other obvious mistakes, not to facilitate substantive legal challenges. The court also found that McGaughy's new § 2255 claim was procedurally barred because McGaughy could have raised the claim on direct appeal and failed to do so. In the alternative, it found the claim failed on the merits because the government had not provided false information or otherwise misled the court at re-sentencing.

II. Analysis

We first consider whether the district court had jurisdiction to re-sentence McGaughy, even though it did not formally grant his first § 2255 motion. Next, we consider whether the court had jurisdiction over McGaughy's Rule 35 claim. Finally, we consider whether McGaughy procedurally defaulted his second § 2255 claim by failing to challenge his re-sentencing on direct appeal. Because we resolve all of McGaughy's claims on jurisdictional and procedural default grounds, we do not reach the merits.

A. McGaughy's First § 2255 Motion

The government argues that the district court never regained jurisdiction to re-sentence McGaughy because it never formally granted his first § 2255 motion. Therefore, the government argues, McGaughy's original sentence should be reinstated and his present appeal dismissed.

“A district court does not have inherent power to re-sentence defendants at any time,” but has the power to do so only where authorized by statute, such as under § 2255. United States v. Blackwell, 81 F.3d 945, 949 (10th Cir.1996). Typically, re-sentencing after a successful § 2255 petition proceeds as a matter of course.

Here, the government essentially conceded ineffective assistance of counsel, and the district court vacated McGaughy's sentence on that basis. The court then proceeded to re-sentencing, again sentencing McGaughy to 46 months' imprisonment. Finally, apparently believing it had not sufficiently resolved the motion, the court dismissed the motion as moot. The court reasoned that dismissal was appropriate because McGaughy had already received the relief his motion requested—that is, “his original sentence was vacated and [the court] thereafter conducted a second sentencing hearing.” R., Vol. 1, Doc. 161 at 190, Proposed Findings and Recommended Disposition, United States v. McGaughy, No. 07–CR–2052 at 1 (D.N.M. Nov. 1, 2010).

Despite these concessions below, the government now claims the district court lacked jurisdiction to re-sentence McGaughy because the court never formally granted his motion, and ultimately dismissed it. To resolve this issue, we start with the relevant language of § 2255, which authorizes the district court to vacate a sentence when

the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.

28 U.S.C. § 2255(b).² The statute does not expressly discuss at what point a § 2255 motion must be granted. Rather, it authorizes the court to re-sentence the defendant if the court finds one of three things:

[1] that the judgment was rendered without jurisdiction, or

[2] that the sentence imposed was...