Case: 10-30166 Document: 00511407629 Page: 1 Date Filed: 03/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-30166
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

ROBERT THOMPSON, also known as John Lawson,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                                 No. 3:07-CR-109-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Robert Thompson pleaded guilty and was sentenced to imprisonment to
be served consecutively with his state sentence. He appeals the initial federal

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 10-30166

sentence and the decision to modify it to run concurrently with his state sen-
tence. We affirm in part and vacate in part, concluding that Thompson’s chal-
lenge to the initial sentence is barred by his appeal waiver but that the district
court did not have the authority to modify the sentence.


                                          I.
         Pursuant to a plea agreement, Thompson pleaded guilty to one count of
conspiracy to commit wire fraud and obstruct justice; seven counts of wire fraud;
one count of conspiracy to commit wire fraud, mail fraud, and money laundering;
one count of mail fraud; one count of honest services mail fraud; one count of
money laundering; four counts of access device fraud; two counts of aggravated
identity theft; one count of computer fraud; one count of bank fraud; and one
count of obstruction of justice. The charges stemmed from Thompson’s use and
possession, while in state prison, of the financial information of over fifty-five in-
dividuals and businesses.
         The plea agreement included a waiver of Thompson’s right to appeal his
conviction and sentence on direct appeal or in any post-conviction proceeding.
The waiver allowed Thompson to appeal any punishment that is (1) imposed in
excess of the statutory maximum, (2) an upward departure pursuant to the sen-
tencing guidelines, or (3) above the guideline range calculated by the district
court.
         The district court found that all the offenses except the two aggravated-
identity-theft counts should be grouped together under the guidelines. With an
offense level of 45 and a criminal history category of VI, the guideline calculation
was life imprisonment. That included a 22-level increase because the intended
loss was more than $20 million but less than $50 million. Thompson objected to
the increase, arguing that the $20-50 range “grossly overstated” the intended
loss, but the district court overruled his objection.

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      The two aggravated-identity-theft counts carried a mandatory sentence of
two years, to be served concurrently with each other but consecutively to any
other sentence. Because the guideline range of life imprisonment, plus two
years, exceeded the statutory maximum, the court had to impose consecutive
sentences to the extent necessary to achieve the guideline range. The sum of the
statutory maximum sentences for all the offenses was 309 years, which the court
imposed, to be served consecutively to any other sentence that Thompson was
then serving.
      More than a month after the sentencing hearing, the government moved
to amend the sentence so that the federal sentence would run concurrently with
the existing state sentence. The government’s stated rationale was that the
amendment would better allow Thompson to be placed immediately in federal
custody—and that all the relevant agencies, state and federal, believe he is best
suited for a specialized federal facility, given the unique security concerns that
his circumstance raises.
      The district court granted the government’s motion one day after it was
filed. Five days later, Thompson filed an objection to the motion, requested a
hearing, and moved to set aside the order granting the motion. The district
court denied Thompson’s requests. On appeal, Thompson argues that the court
erred in determining the intended loss and that the court should not have
amended the sentence.


                                       II.
      We first address whether Thompson’s appeal is barred by the appeal waiv-
er in his plea agreement. We must decide whether the waiver was knowing and
voluntary and applies to the circumstances at hand. See United States v. Bond,

, 544 (5th Cir. 2005). On appeal, Thompson does not claim that the
plea agreement was unknowing or involuntary but contends the waiver does not

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apply to the issues on appeal.


                                        A.
      Thompson’s challenge to the intended loss amount is barred by his appeal
waiver, because it plainly does not fall into any of three exceptions in the plea
agreement: The sentence is not in excess of the statutory maximum, is not an
upward departure under the guidelines, and is not above the guideline range
calculated by the district court. Thompson is not arguing that the court imposed
a punishment above the calculated range; rather, he is challenging the method
by which the court calculated the range, something he expressly waived in his
plea agreement.
      Thompson attempts to evade the appeal waiver by arguing that the deci-
sion to impose consecutive sentences for all twenty-one offenses constituted an
upward departure. Even assuming, arguendo, that that argument has merit,
Thompson’s challenge to the loss-amount determination would still be barred.
An appellant cannot use one valid, specific exception to an appeal waiver to in-
terject other arguments that would be otherwise barred by the waiver. The only
thing Thompson can challenge under this argument is the decision to impose
consecutive sentences.


                                        B.
      Thompson’s challenge to the order modifying his initial sentence is not
barred by the appeal waiver. As a technical matter, Thompson is not challeng-
ing the sentence. Rather, he is appealing the district court’s exercise of its au-
thority, under 18 U.S.C. § 3582(c) and Rule 35(a) of the Federal Rules of Crimin-
al Procedure, to modify a previously imposed sentence. It is true that a success-
ful challenge to the court’s ability to exercise that authority would lead to vacat-
ing the new sentence, but the appeal itself is a challenge to something other than

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                                  No. 10-30166

the sentence that was imposed. Thus, the appeal waiver, which only bars a chal-
lenge to the conviction or sentence, is not applicable. Furthermore, for reasons
we explain in part III, the district court acted beyond its statutory authority
when it issued its order modifying the initial sentence.


                                       III.
      Once a sentence is imposed, the sentencing court’s authority to modify it
is circumscribed, see United States v. Addonizio, 

, 189 (1979), and
the district court did not have the statutory authority to modify Thompson’s sen-
tence. Under 18 U.S.C. § 3582(c), there are only three methods by which a dis-
trict court can modify a previously imposed sentence. Of those three, only one
is applicable here: “[T]he court may modify an imposed term of imprisonment
to the extent otherwise expressly permitted by statute or by Rule 35 of the Fed-
eral Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B).
      Rule 35 allows a court to change a sentence for two reasons: (1) “Within
14 days after sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error”; and (2) “[u]pon the government’s
motion made within one year of sentencing, the court may reduce a sentence if
the defendant, after sentencing, provided substantial assistance in investigating
or prosecuting another person.” F ED. R. C RIM. P. 35. “Whether the district court
had authority to resentence a defendant pursuant to Rule 35(a) is a question of
law that we review de novo.” United States v. Ross, 

(5th Cir. 2009).
      Neither rationale is applicable here. The court issued its order more than
fourteen days after sentencing, and the order did not result from the defendant’s
providing substantial assistance in investigating or prosecuting another person.
      The government claims, however, that the amendment was issued pursu-
ant to Rule 35(a), which allows a court to correct a sentence for clear error. Even
assuming the government can show that the initial sentence contained clear er-

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                                       No. 10-30166

ror (which is highly doubtful), it is irrelevant, because Rule 35(a) allows for
clear-error corrections only if made within fourteen days. The government has
not claimed the fourteen-day restriction is somehow inapplicable in this case,1
and it is plain that an extension of time is not an option.2
       Furthermore, the error is jurisdictional and hence not subject to harmless-
error review.3 Thus, the district court did not have jurisdiction to modify the
sentence outside the narrow exceptions allowed by the statute and Rule 35, none
of which is applicable.
       The original sentence is AFFIRMED. The order modifying that sentence
is VACATED. This matter is REMANDED for any further proceedings that
might be necessary in light of our decision.




       1
         The government curiously omits any reference to the fourteen-day limit, stating only
that “[u]nder Fed. R. Crim. P. 35(a), a court may correct a sentence that resulted from arith-
metical, technical, or other clear error.”
       2
       See FED . R. CRIM . P. 45(b)(2) (“The court may not extend the time to take any action
under Rule 35, except as stated in that rule.”).
       3
        See 

(stating that the time period in an earlier iteration of
Rule 35 was a “jurisdictional” limitation).

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