Filed: Apr. 30, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14566 ELEVENTH CIRCUIT APRIL 30, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 97-00074-CR-CAR-5 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HOMER GREEN, a.k.a. Jojo, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (April 30, 2010) Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges. PER CURIAM: Homer
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14566 ELEVENTH CIRCUIT APRIL 30, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 97-00074-CR-CAR-5 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HOMER GREEN, a.k.a. Jojo, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (April 30, 2010) Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges. PER CURIAM: Homer ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14566 ELEVENTH CIRCUIT
APRIL 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 97-00074-CR-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMER GREEN,
a.k.a. Jojo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 30, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Homer Green appeals the district court’s denial of his pro se motion to
reconsider the sentence imposed after the district court granted his motion for a
reduction of sentence under 18 U.S.C. § 3582(c)(2). Because we conclude the
district court lacked jurisdiction to reconsider the sentence imposed, we vacate and
remand.
In 1999, Green was convicted of conspiracy to possess and possession with
intent to distribute crack cocaine and sentenced to 360 months’ imprisonment.
In 2008, Green filed a pro se motion to reduce his sentence under
§ 3582(c)(2) based on a sentencing guideline amendment that retroactively lowered
the base offense level applicable to crack offenses. On May 19, 2008, the district
court granted the motion, determined the new guidelines range to be 292 to 365
months’ imprisonment, and sentenced Green to 292 months’ imprisonment.
Thereafter, on June 5, 2008, Green filed a motion for reconsideration in
which he objected to the manner in which the court determined the new guidelines
range and sentence. On August 26, 2009, the district court denied the motion.
This appeal followed.
We review de novo whether the district court had jurisdiction over Green’s
motion to reconsider. United States v. Phillips,
597 F.3d 1190, 1194 n.9 (11th Cir.
2010).
The authority of a district court to modify an imprisonment sentence is
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narrowly limited by statute. Under § 3582(c), a court may not modify an
imprisonment sentence except in these three circumstances: (1) where the Bureau
of Prisons has filed a motion and either extraordinary and compelling reasons
warrant a reduction or the defendant is at least 70 years old and meets certain other
requirements; (2) where another statute or Federal Rule of Criminal Procedure
(“Rule”) 35 expressly permits a sentence modification; or (3) where a defendant
has been sentenced to a term of imprisonment based on a sentencing range that was
subsequently lowered by the Commission and certain other requirements are met.
See 18 U.S.C. § 3582(c)(1)-(2);
Phillips, 597 F.3d at 1194-95.
Our recent decision in Phillips dictates the outcome of Green’s case. Once
the court modified Green’s sentence under § 3582(c)(2), there was no authority for
the court to further modify the sentence except as expressly provided by Rule 35.
Rule 35, however, permits the court to correct a sentence only within seven days.
See Fed. R. Crim. P. 35(a);1
Phillips, 597 F.3d at 1195-96. And this time frame is
jurisdictional.
Phillips, 597 F.3d at 1196-97.
Here, the district court granted Green’s § 3582(c)(2) motion on May 19,
2008. The court took no action to correct the sentence within seven days. In fact,
1
The rules have since been amended to provide that the court may correct a sentence
within fourteen days. That amendment did not become effective until December 1, 2009. See
Fed. R. Crim. P. 35 (2009). Thus, at the time the district court considered Green’s motion, the
court was under the seven-day limitation.
3
Green did not file for reconsideration until June 5, 2008, and the district court did
not rule on the motion until August 26, 2009. Because more than seven days
elapsed, the district court lacked jurisdiction to reconsider Green’s sentence.2
Accordingly, we VACATE and REMAND with instructions for the district
court to dismiss the motion for reconsideration.
2
Although motions for reconsideration are permitted in criminal cases generally, such
motions do not apply in proceedings under § 3582(c)(2). See
Phillips, 597 F.3d at 1199-1200.
The proper avenue for Green to challenge the manner in which the district court determined his
new guidelines range was to appeal the district court’s order granting his § 3582(c) motion
within the time permitted.
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