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United States v. TownsendNo. 13-2677.

Background. Louis Townsend pleaded guilty to possessing a firearm as a felon and was sentenced to 71 months in prison. He challenges his sentence on several grounds, but the government questions whether the appeal is timely. Townsend’s deadline for filing a notice of appeal was July 22, 2013. On July 17 he filed a motion titled “Defendant Louis Townsend’s Motion to Reconsider His Sentence.”

By statute a motion for sentence modification must be brought under Rule 35 of the Federal Rules of Criminal Procedure, and motions under that rule don’t extend the time for filing an appeal. So the due date for Townsend’s appeal remained unchanged notwithstanding the motion.

A threshold question is whether Townsend’s notice of appeal was timely filed. The government says it was not: The judgment was entered on July 8, and the appeal wasn’t noticed until July 30. Townsend had 14 days after the entry of the judgment to file a notice of appeal. FED.R.APP.P. 4(b)(1)(A). This 14-day deadline is not jurisdictional, but it is mandatory and therefore must be enforced if the argument isn’t waived. United States v. Rollins, 607 F.3d 500, 501 (7th Cir.2010).

Townsend counters that the 14-day deadline should be calculated from July 19, the date the court denied his motion for reconsideration, rather than July 8, the date judgment was entered. This argument presupposes that a motion for reconsideration suspends the time limit for appeal.

No federal rule or statute allows a motion to reconsider in a criminal case, but reconsideration motions are accepted as a common-law practice. See, e.g., United States v. Healy, 376 U.S. 75, 79-80, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). If a common-law motion for reconsideration is filed within the time ordinarily given for noticing an appeal, the motion is considered timely and renders the court’s initial judgment nonfinal. See id. at 78-79, 84 S.Ct. 553. Thus, there is no final judgment until the court rules on the motion for reconsideration, which opens a new window for an appeal. See Rollins, 607 F.3d at 502-04.

But Congress long ago abrogated this common-law practice in the sentencing context. The Sentencing Reform Act of 1984 explicitly prevents district courts from “modify[ing] a term of imprisonment once it has been imposed” except in three narrow situations. 18 U.S.C. § 3582(c).

Two of the exceptions are irrelevant here; one requires a motion from the Bureau of Prisons, § 3582(c)(1)(A), and the other a change in the applicable sentencing guidelines, § 3582(c)(2). The remaining exception applies more generally but is restrictive in nature: The court may modify a sentence only to the extent “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” § 3582(c)(1)(B).

Sentence modification under Rule 35 is extremely limited. In the absence of a motion from the government, the court has authority to modify a sentence only if the sentence originally imposed “resulted from arithmetical, technical, or other clear error,” and even then the court must act within 14 days after the sentence is orally announced. FED. R. CRIM. P. 35(a). Moreover, “[t]he filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.” FED. R. APP. P. 4(b)(5).

This case is governed by statutes and the federal rules of procedure, not any common-law practice. Townsend cites no statute permitting this sort of reconsideration, so under the plain text of § 3582(c), the court was authorized to proceed only within the constraints of Rule 35. And according to Rule 4(b)(5) of the Rules of Appellate Procedure, proceedings under Rule 35 do not suspend the time for filing a notice of appeal. Thus, Townsend’s motion did not affect the time limit for filing a notice of appeal. Townsend’s notice was eight days late. Because the government has raised the timeliness issue, this appeal must be dismissed as untimely.


By:  Chicago Federal Criminal Defense Attorney Michael J. Petro