Filed: Nov. 30, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4392 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMAINE LAVONNE CHASE, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:94-cr-40106-jlk-5) Submitted: October 27, 2009 Decided: November 30, 2009 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelt
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4392 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMAINE LAVONNE CHASE, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:94-cr-40106-jlk-5) Submitted: October 27, 2009 Decided: November 30, 2009 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelto..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE LAVONNE CHASE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (7:94-cr-40106-jlk-5)
Submitted: October 27, 2009 Decided: November 30, 2009
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Ray Burton Fitzgerald, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Jean Barrett Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Chase seeks to appeal the district court’s
grant of his 18 U.S.C. § 3582(c) motion, in which Chase sought a
reduction of his sentence. The Government has filed a motion to
dismiss the appeal as untimely. While we deny the Government’s
motion to dismiss, we affirm the district court’s grant of
Chase’s § 3582(c) motion.
The underlying procedural history of this case is
long-standing, and well known to the parties. Thus we will not
repeat it here. Pertinent to the issues presently on appeal are
the following facts. While an appeal was previously pending in
this court from the district court’s May 24, 2007 Amended
Judgment, entered based on the March 23, 2007 directive of this
court, the district court entered an order reducing Chase’s
sentence from 360 to 292 months’ imprisonment on his conviction
pursuant to 21 U.S.C. § 846 (2006), for conspiracy to possess
with the intent to distribute cocaine and cocaine base (“crack”)
(Count 1). The reduction was made pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1 (2007) (“Amendment 706”). As the
prior filing of the notice of appeal divested the district court
of jurisdiction to enter the order, we granted Chase’s motion
for remand to confer jurisdiction upon the district court, and
remanded the case for the limited purpose of allowing the
district court to consider the propriety of resentencing Chase
2
in accordance with the then newly-amended crack cocaine
sentencing guideline, Amendment 706. On December 18, 2008, the
district court reentered an order granting Chase a reduction of
his sentence on Count 1 from 360 months to 292 months’
imprisonment.
Chase filed a motion for reconsideration, arguing that
the 292-month sentence imposed by the district court for
conspiracy to distribute crack cocaine exceeded the 240-month
statutory maximum for that conviction, in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000). The district court denied
the motion on January 27, 2009. Chase filed a motion to correct
the order denying his motion for reconsideration, on the ground
that he was not convicted of possession with intent to
distribute 50 grams or more of cocaine base. Following a
hearing, the district court entered an amended order on March 6,
2009, vacating its January 27, 2009 order, and denying Chase's
motion to reconsider the December 18, 2008 order reducing his
sentence to 292 months pursuant to § 3582(c). Citing to United
States v. Dunphy,
551 F.3d 247, 254 (4th Cir. 2009), cert.
denied,
129 S. Ct. 2401 (2009), and to USSG § 1B1.10(a)(3), the
district court reasoned that the sentence reduction in a
§ 3582(c) proceeding is not a full resentencing, and that it was
accordingly limited to considering the effect of the retroactive
amendment only, and not any other sentencing or guidelines
3
issues. The district court found that Chase’s argument that his
sentence violated Apprendi, is a “new issue outside the scope of
§ 3582(c) because it is unrelated to any change in the
sentencing guidelines,” that Chase’s Apprendi argument had
already been raised in the district court and on appeal, and
that this court explicitly twice affirmed Chase’s 360-month
concurrent sentence. On March 12, 2009, the district court
modified its order without changing the substantive ruling.
On March 12, 2009, Chase filed the presently-pending
appeal, contending that he is appealing the final order of the
district court entered on March 6, 2009. The Government has
filed a motion to dismiss the appeal as untimely, contending
that, while Chase’s notice of appeal designates the district
court’s March 6, 2009 order as the order being appealed, Chase
actually seeks to appeal the order of December 18, 2008,
granting Chase’s § 3582(c) motion.
We first address the Government’s motion to dismiss
Chase’s appeal. A defendant’s notice of appeal in a criminal
case must be filed within ten days after the entry of the
judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A).
Time limits set forth in Rule 4(b) are non-jurisdictional.
United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009).
The district court entered its order granting Chase’s
motion for reduction of sentence pursuant to § 3582(c) on
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December 18, 2008. Although the Federal Rules of Criminal
Procedure and Federal Rules of Appellate Procedure 4(b) do not
provide for tolling of the ten-day appeal period for the filing
of a motion for reconsideration, we have held that the filing of
such a motion delays the time period for filing the notice of
appeal until after the motion has been ruled upon. United
States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (citing
United States v. Ibarra,
502 U.S. 1, 4 n.2 (1991)). Thus,
because Chase filed a motion to reconsider and amend the
judgment by the January 5, 2009 deadline for filing his notice
of appeal, the time for filing the appeal notice was delayed
until the district court’s issuance of its order denying that
motion on January 27, 2009. The new deadline for the filing of
Chase’s notice of appeal from the grant of his motion for
reduction of sentence, then, was February 10, 2009. See Fed. R.
App. P. 26. Rather then filing a notice of appeal, Chase filed
a “Motion to Amend/Correct Order on Motion for Reconsideration”
on January 28, 2009, upon consideration of which motion, as
noted above, the district court vacated its January 27, 2009
order and denied the motion to reconsider its grant of Chase’s
§ 3582(c) motion.
In its motion to dismiss, the Government argues that,
while the filing of the first motion for reconsideration tolled
Chase’s appeal period relative to his motion for reduction of
5
sentence, his filing of the second motion to reconsider did not
have that same effect. It asserts, therefore, that Chase’s
notice of appeal, ultimately filed on March 12, 2009, the same
day as the entry of the district court’s (modified) order
denying his motion to amend/correct, was ineffectual to give
jurisdiction to this court to consider the merits of the
December 18, 2008 grant of Chase’s motion for reduction of
sentence.
The problem with the Government’s analysis is that, in
its order ruling on Chase’s second motion for reconsideration,
the district court expressly vacated its January 27, 2009 order
denying Chase’s motion for reconsideration. Thus, when the
district court, on March 6, 2009, denied Chase’s motion for
reconsideration of the grant of his § 3582(c) motion, it
effectively restarted the clock for the filing of Chase’s notice
of appeal from the denial of his first motion for
reconsideration.
Given this Court’s pronouncement in Urutyan that time
limits for the filing of appeals in criminal cases are non-
jurisdictional, given the unique circumstances present in this
case, * and giving Chase every possible benefit of the
*
Included in these unique circumstances is the fact that
Chase’s notice of appeal was filed within the thirty-day
(Continued)
6
construction of the rules regarding the timeliness of appeals,
we find that because Chase’s March 12, 2009 notice of appeal was
timely as to the denial of his motion for reconsideration, as
set forth in the district court’s March 6, 2009 order (as
modified on March 12, 2009), this court has jurisdiction to
consider Chase’s appeal. Therefore, we deny the Government’s
motion to dismiss Chase’s appeal from the December 18, 2009
grant of his § 3582(c) motion.
The substance of Chase’s appeal as to the district
court’s grant of his § 3582(c) motion is his argument that even
though the district court lowered his sentence on his crack
cocaine conspiracy conviction two levels pursuant to Amendment
706 to the sentencing guidelines, from 360 months’ imprisonment
to 292 months’ imprisonment, it erred in failing to lower his
sentence to 240 months, which is the statutory maximum for his
conviction. He asserts that his case is distinguishable from
Dunphy, such that the district court could have resentenced him
when it considered his § 3582(c) motion, because his sentence is
unconstitutional.
We find no merit to Chase’s claims. First, in Dunphy,
we held that proceedings under § 3582(c)(2) do not constitute a
excusable neglect period provided for in Fed. R. App. P.
4(b)(4).
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full resentencing of the defendant. Dunphy, 551 F.3d at 251-53
(rejecting defendant’s argument that United States v. Booker,
543 U.S. 220 (2005), should apply to § 3582 proceeding). There
is nothing in Dunphy that limits this rule based on the
constitutionality of the original sentence, and the district
court correctly relied on Dunphy in refusing Chase’s request for
resentencing beyond that prescribed by Amendment 706.
Second, Chase’s 360-month sentence was not infirm. As
noted by the district court, this court twice explicitly
affirmed Chase’s 360-month concurrent sentence. See United
States v. Chase, 296 F.3d 247, 253 (4th Cir. 2002) (holding that
the imposition of a single 360-month term for conspiracy,
although erroneous, was harmless); United States v. Chase,
1999
WL 1054140, at *2 (4th Cir. Nov. 22, 1999) (No. 98-4665)
(remanding for consideration of post-offense rehabilitation
departure, but affirming sentence in all other respects). See
also United States v. White,
238 F.3d 537, 542-43 (4th Cir.
2001). Hence, this court already has upheld Chase’s 360-month
sentence and will not further entertain his continued claims
that his 360-month sentence violated Apprendi or was otherwise
unconstitutional.
Third, when this court remanded the case to the
district court on December 16, 2008, the remand was expressly
limited to confer jurisdiction to the district court to allow it
8
to consider the propriety of resentencing Chase in accordance
with Amendment 706. Therefore, the district court was
foreclosed by the mandate rule from revisiting the issue of the
legality of Chase’s sentence except as it related to the amended
guidelines. See United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993) (stating that the mandate rule “forecloses relitigation of
issues expressly or impliedly decided by the appellate court,”
as well as “issues decided by the district court but foregone on
appeal.”); see also Volvo Trademark Holding Aktiebolaget v.
Clark Mach. Co.,
510 F.3d 474, 481 (4th Cir. 2007). Thus, the
district court had no authority in any event to resentence Chase
except pursuant to Amendment 706.
Hence, we find no error in the district court’s grant
of a two-level reduction in Chase’s sentence based on Amendment
706, and further find that the district court’s grant of Chase’s
§ 3582(c) motion was not an abuse of discretion. See United
States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004). Chase’s
292-month sentence, as set forth in the district court’s March
12, 2009 order, is affirmed.
Accordingly, we deny the Government’s motion to
dismiss Chase’s appeal as untimely, and affirm the district
court’s grant of Chase’s § 3582(c) motion. We dispense with
oral argument because the facts and legal contentions are
9
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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