Filed: Feb. 05, 2013
Latest Update: Mar. 26, 2017
Summary: Case: 12-10371 Date Filed: 02/05/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10371 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-20753-PAS-2 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus EARL SILAS, JR., Defendant-Appellee. _ Appeals from the United States District Court for the Southern District of Florida _ (February 5, 2013) Before TJOFLAT, MARTIN and BLACK, Circuit Judges. PER CURIAM: Case: 12-10371 Date Filed: 02/05/
Summary: Case: 12-10371 Date Filed: 02/05/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10371 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-20753-PAS-2 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus EARL SILAS, JR., Defendant-Appellee. _ Appeals from the United States District Court for the Southern District of Florida _ (February 5, 2013) Before TJOFLAT, MARTIN and BLACK, Circuit Judges. PER CURIAM: Case: 12-10371 Date Filed: 02/05/2..
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Case: 12-10371 Date Filed: 02/05/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10371
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20753-PAS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
EARL SILAS, JR.,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 5, 2013)
Before TJOFLAT, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Case: 12-10371 Date Filed: 02/05/2013 Page: 2 of 3
The Government appeals the district court’s resentencing of Earl Silas, Jr.,
pursuant to Federal Rule of Criminal Procedure 35(a). The Government argues
the district court lacked jurisdiction to resentence Silas because the resentencing
was conducted more than 14 days after the original oral sentence was announced.
Under Rule 35, “[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). The word sentencing “means the oral announcement of the
sentence.” Fed. R. Crim. P. 35(c). We have held that the time limit of Rule 35(a)
is jurisdictional and that any modification outside of that time limit is a “legal
nullity.” United States v. Phillips,
597 F.3d 1190, 1196-97 (11th Cir. 2010)
(citing United States v. Diaz-Clark,
292 F.3d 1310, 1319 (11th Cir. 2002). If a
sentence is vacated within the time limit, but a new sentence is not imposed before
the time limit expires, the order “vacating the initial sentence wither[s] and is of
no effect.” United States v. Morrison,
204 F.3d 1091, 1094 (11th Cir. 2004).
As conceded by Silas, the district court lacked jurisdiction to enter the
amended order. Phillips, 597 F.3d at 1196-97. We are required to consider the
district court’s jurisdiction sua sponte, see United States v. Straub,
508 F.3d 1003,
1008 (11th Cir. 2007), but even were we to look for invited error, we would find
none because the Government objected to the Rule35(a) hearing and did not invite
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Case: 12-10371 Date Filed: 02/05/2013 Page: 3 of 3
any subsequent error because it never acquiesced or agreed to the lack of
jurisdiction at resentencing. Moreover, we have specifically said the failure to
raise the Rule 35(a) time limit does not waive the issue on appeal. Morrison,
204
F.3d 1093. Accordingly, the district court lacked jurisdiction to enter the amended
sentence of imprisonment.
VACATED AND REMANDED.
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