United States v. Willis

• Docket Number: 22-10384
• Decision Date: 07 August 2023
• Parties: United States of America, Plaintiff-Appellee, v. Vinson Lee Willis, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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United States of America, Plaintiff-Appellee, v. Vinson Lee Willis, Jr., Defendant-Appellant.

No. 22-10384

United States Court of Appeals, Fifth Circuit

August 7, 2023

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-CR-488-1

Before DENNIS, ENGELHARDT, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Vinson Lee Willis, Jr., pled guilty to three counts of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He raises various issues on appeal. All fail, save for one: Willis's sentence is impermissibly ambiguous. We therefore vacate and remand for further proceedings consistent with this opinion.

I.

Vinson Lee Willis, Jr., is a convicted felon who dealt in guns and narcotics. In early August 2019, a confidential informant contacted agents at the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") about an interaction the informant had with a man named "D.O." On August 3, D.O. sold the informant methamphetamine, called his supplier on the informant's phone, and drove the informant to his supplier's house to collect a load of heroin. D.O. later told the informant that "he had the ability to sell large quantities of heroin, ecstasy, and as many guns as [the informant] could purchase." ATF agents searched various law enforcement databases for the phone number and house address. They determined that Willis was the likely supplier.

Three periods of firearms sales and possession followed. First from August 8-23, Willis sold eleven guns to two confidential informants and an undercover agent. D.O. served as the intermediary for the transactions. Then, from August 26-28 the undercover agent and one of the confidential informants purchased three more firearms directly from Willis. Finally on September 4, the undercover agent and one of the confidential informants met Willis to purchase additional firearms. Willis placed one of the guns in the undercover agent's truck. While returning to his car to retrieve the others, he saw law enforcement vehicles heading toward him. Willis ran. The officers quickly apprehended and arrested him. After Willis waived his Miranda rights and consented to the search of his vehicle, the officers found two loaded guns-one in the trunk, the other in a seatback pocket.

Based on these three periods of possession, Willis was charged with, and pled guilty to, three corresponding counts of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1); see also id. § 924(a)(2) (West 2021) (providing the sentence for a § 922(g) offense at the time of Willis's violation); id. § 924(a)(8) (West 2022) (providing the current sentence for a § 922(g) offense). The presentence report ("PSR") calculated Willis's offense level to be 30 and his criminal-history category to be V. This yielded a Guidelines range of 151-188 months' imprisonment and 3 years' supervised release. Willis filed no objections to the PSR.

On April 14, 2022, the district court imposed the following sentence:

[I]t is the judgment of the Court that the defendant, Vinson Lee Willis, Jr., is hereby committed to the custody of the Federal Bureau of Prisons for a period of 120 months on Counts 1, 2, and 3. I'm going to run those consecutively on you. You'll finish one, and then you'll finish the next, and then you'll finish the next. Only to the extent it produces a total aggregate of 188 months.

The district court also sentenced Willis to a 3-year term of supervised release. The April 19 written judgment tracked the oral pronouncement. Willis timely filed a notice of appeal on April 20, 2022.

But on May 31, the district court scheduled a "re-sentencing hearing" to "address matters . . . raised by the Bureau of Prisons." Specifically, the district court had received "a correspondence . . . from the Federal Bureau of Prisons that indicated the sentence could not be executed as intended." Because Willis had already noticed his appeal, Willis filed an unopposed motion in the Fifth Circuit requesting the appeal be stayed pending the purported re-sentencing. We granted the motion. But we also clarified that the order was "not to be construed as a comment on what authority the district court has, at this time, over the sentence."

At the July 28 re-sentencing hearing, the district court said it was "reimposing" the original April sentence-but "with a little tweak." "With the permission of the parties," the district court sentenced Willis to "180 months rather than 188 months." In its words:

Vinson Lee Willis, Jr., is hereby committed to the custody of the Federal Bureau of Prisons for a period of 120 months on Counts 1 and 2, to run concurrently with each other. The defendant is further committed to the custody of the Federal Bureau of Prisons for a period of 60 months on Count 3, to run consecutively to the sentences imposed in Counts 1 and 2. The total aggregate sentence is 180 months.... It is further ordered that upon release from imprisonment, the defendant shall be placed on supervised release for a term of three years per count, to run concurrently with each other.

The district court did so, it said, "to make clear that [it was] sentencing Mr. Willis for his crimes and not his misconduct in court." The court explained that it thought Willis had been a "smart aleck" at the prior hearing. And while it continued to think 188 months was an appropriate sentence, the court decided to "knock eight months off" to "make clear for the appellate record" that it was sentencing Willis for "the crime and not [his] smart mouth." Willis filed another notice of appeal the day after the district court entered its amended judgment.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.

Willis argues his sentence is procedurally and substantively flawed. Recall, however, that Willis was sentenced twice for the same conviction- once in April 2022, then again in July 2022. So before we can evaluate Willis's alleged errors, we must begin with the analytically prior question: Which sentence do we evaluate?

Willis argues that the district court lacked jurisdiction to conduct the July re-sentencing and to enter the amended judgment imposing a different term of imprisonment. The Government agrees. So do we.

Willis timely filed his initial notice of appeal on April 20. This was "an event of jurisdictional significance." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). "It confer[red] jurisdiction on the court of appeals and divest[ed] the district court of its control over those aspects of the case involved in the appeal." Ibid.; see also Ross v. Marshall, 426 F.3d 745, 751 (5th Cir. 2005) ("[T]he filing of a valid notice of appeal from a final order of the district court divests that court of jurisdiction to act on the matters involved in the appeal." (quotation omitted)); United States v. Lucero, 755 Fed.Appx. 384, 386-87 (5th Cir. 2018) (per curiam) ("The general rule is that a case can exist only in one court at a time, and a notice of appeal permanently transfers the case to us until we send it back."); Griggs, 459 U.S. at 58-60 (explaining why it would not be "tolerable" to have "a district court and a court of appeals . . . simultaneously analyzing the same judgment"). Thus, on a straightforward application of the one-court-at-a-time rule, the district court lacked the power to re-sentence Willis on July 28. After all, the entirety of Willis's appeal involves the procedural and substantive reasonableness of his sentence, so the district court's re-sentencing necessarily clashed with "aspects of the case involved in the appeal." Griggs, 459 U.S. at 58.

"True, there are exceptions to the general one-court-at-a-time rule." Lucero, 755 Fed.Appx. at 386; see, e.g., FED. R. APP. P. 4(b)(3), (5); see also 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3949.1 (5th ed. Apr. 2023 update) [hereinafter WRIGHT &MILLER] (collecting exceptions). But none applies here.

First Appellate Rule 4(b)(5) instructs that "[t]he filing of a notice of appeal . . . does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a)." FED. R. APP. P. 4(b)(5). Rule 35(a), in turn, provides that "[w]ithin 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). Even if the July re-sentencing were best interpreted as correcting "arithmetical, technical, or other clear error," ibid., the district court nevertheless lacked jurisdiction to do so. That's because more than 14 days had passed between the original April judgment and the July re-sentencing. And Rule 35(a)'s "time limit is jurisdictional and strictly construed." United States v. Coe, 482 Fed.Appx. 957, 957 (5th Cir. 2012) (per curiam); see also United States v. Lopez, 26 F.3d 512, 518-23 (5th Cir. 1994) (per curiam) (so holding with respect to an earlier, but substantially similar, iteration of Rule 35). Regardless, the district court's decision to "knock eight months off" Willis's sentence was not in response to an "arithmetical, technical, or other clear error." FED. R. CRIM. P. 35(a). Rather, the district court did so because, upon reflection, it wished it "had held [Willis] in contempt rather than giving [him] 188 months," and because it now "want[ed] to make clear for the appellate record" that Willis was being sentenced for "the crime and not [his] smart mouth." This is not a qualifying justification under Rule 35. The Rule's advisory committee notes even warn that Rule 35 "is not intended to afford the court the opportunity . . . to change its mind about the appropriateness of the sentence." FED. R. CRIM. P. 35...