Opinion
CRIMINAL ACTION No. 00-20055-01-KHV
July 3, 2001
MEMORANDUM AND ORDER
This matter comes before the Court on defendant's Motion For Reconsideration (Doc. #110) filed February 12, 2001. For the reason stated below, the Court overrules defendant's motion.
Factual Background
On February 5, 2001, following his plea to possession of cocaine with intent to distribute and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, the Court sentenced defendant to 97 months in custody. The sentence included a three level enhancement for defendant's role as a manager or supervisor in an operation involving five or more people. At sentencing, defendant argued against the enhancement because the government had stipulated that he did not have an aggravating role in the offense. The Court nonetheless found that the presentence report referred to DEA reports which provided sufficient evidence to support an enhancement for defendant's role in the offense. Defendant and the government now ask the Court to reconsider its decision.
Analysis
A federal district court may modify a defendant' s sentence only where Congress has expressly authorized it to do so. See United States v. Blackwell, 81 F.3d 945.947 (10th Cir. 1996); 18U.S.C. § 3582(c). Congress has set forth three limited circumstances in which a court may modify a sentence: (1) upon motion of the Director of the Bureau of Prisons in certain extraordinary circumstances or where defendant has reached 70 years of age and has served at least 30 years in prison; (2) when "expressly permitted by statute or by Rule 35"; or (3) when defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(1), (2):see Blackwell, 81 F.3d at 947-48. The Court does not have inherent authority to resentence defendant. See id. at 949.
Defendant argues that Fed.R.Crim.P. 35(c) allows the Court to reconsider its sentencing decision Under Rule 35(c) of the Federal Rules of Criminal Procedure, the Court is only authorized to resentence defendant to correct arithmetical, technical, or other clear error within seven days of sentencing. The Court sentenced defendant on February 5, 2001, and defendant filed his motion for reconsideration on February 12, 2001. The Court, however, did not act within the seven days provided by Rule 35(c).
Review of Tenth Circuit authority reveals an apparent conflict as to whether the court must act within seven days to correct a sentence under Rule 3 5(c), or whether defendant must merely make a motion for such relief within seven days. In United States v. Corey, 999 F.2d 493 (10th Cir. 1993), the Tenth Circuit held that the time for filing a notice of appeal from a sentence does not begin until the district court has ruled on a pending motion which has been timely filed under Rule 35(c). In Corey, defendant had filed a motion to reconsider within seven days, but the trial court did not rule until 13 days had passed. After the court denied the motion, defendant filed a notice of appeal. In holding that the appeal time did not run until the district court had rendered its decision, the Tenth Circuit relied upon United States v. Healy, 376 U.S. 75, 84 (1964). Healy held that "a motion for rehearing or reconsideration of an order in a criminal case that is filed within the permissible time period for appeal renders an otherwise final order of the district court nonfinal until disposition of the motion."Corey. 999 F.2d 494-95. The Tenth Circuit found that theHealy doctrine delays the funning of the time for appeal even if the motion for rehearing or reconsideration is meritless.Id. at 496 n. 4 (citing United States v. Ibarra. 502 U.S. 1, 6 (1991), which stated that "there is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit" and therefore "[i]t is far better that all such motions be subsumed under one general rule — the rule laid down inHealy."). Defendant's notice of appeal in Corey, which was filed within 10 days of the district court's decision, was therefore timely.
Corey implies that the sentencing court has authority to reconsider a sentence so long as defendant's motion for reconsideration is timely filed. In United States v. Blackwell, however, the Tenth Circuit held that a district court lacked jurisdiction to correct defendant's sentence 72 days after sentencing, noting that the court mustact within the time frame prescribed by Rule 35(c).See 81 F.3d at 948-9: see also United States v. Phillips, 139 F.3d 913, 1998WL51743, at *2(10th Cir. Feb. 2, 1998) (court must act within seven days after imposition of the sentence).
Notwithstanding Corey, the plain language of Fed.R.Crim.P. 35(c) mandates that the court act, if at all, within seven days of sentencing. Blackwell and Phillips were decided afterCorey. and other circuits have almost uniformly interpreted Rule 3 5(c) to require action by the court within seven days. The Court therefore finds that it does not have inherent authority to act more than seven days after sentencing. See United States v. Rapoport, 159 F.3d 1, 3 (1st Cir. 1998) (after seven days district court no longer has power to correct sentence pursuant to Rule 35(c)); United States v. Abreu-Cabrera. 64 F.3d 67, 74 (2d Cir. 1995) (if motion is timely made but not decided within the seven-day period, judge's power to act under the rule subsides and pending motion is deemed denied);United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998) (court lacked authority to resentence defendant when it acted outside seven day window even though government made motion on seventh day);United States v. Austin, 217 F.3d 595, 598 (8th Cir. 2000) (after seven days any motion for reconsideration is effectively denied); United States v. Nabulsi, 246 F.3d 677, 2000 WL 1844268, at *1 (9th Cir. Dec. 8, 2000) (court lost jurisdiction to modify defendant's sentence when it did not rule on his motion within seven days of sentencing); United States v. Morrison, 204 F.3d 1091, 1094 (11th Cir. 2000) (court lost jurisdiction to resentence defendant since it did not impose new sentence within seven days even though it vacated old sentence within time period).
In any event, the Court finds that it did not commit clear error in sentencing defendant. Although the plea agreement stipulated that the government would not pursue an enhancement based on a managerial role, the Court is not bound by that stipulation. The plea agreement explicitly states that "[t]he defendant understands that the sentence to be imposed will be determined solely by the United States District Judge." Plea Agreement (Doc. #67) filed August 16, 2000 at 4. Furthermore, it is well established that "although the district court should consider the stipulated facts carefully, the court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing." United States v. Rutter, 897 F.2d 1558, 1564 (10th Cir. 1990) (citations and quotations omitted). The Court recognizes that it may not merely adopt the presentence report to support disputed factual findings. See United States v. Keifer, 198 F.3d 798, 800 (10th Cir. 1999). The Court, however, did not do so in this case. To support its conclusion that defendant's actions warranted a three-level enhancement for a managerial role in the offense, the Court relied upon the information from DEA reports which was merely summarized within the presentence report. Specifically, the Court found that defendant recruited another person to act as a drug courier, supplied the drugs, arranged delivery of the drugs, drove one of the cars involved in the transaction and handled the money. Even if another person was actually in charge of the entire operation, as defendant and the government claimed, defendant controlled the local chain of events. Defendant did not dispute the content of the DEA reports on which the Court relied. While it is true that the government must prove by a preponderance of the evidence that the enhancement is justified, the Court also has an obligation to consider all relevant conduct. See United States v. Medina, 246 F.3d 683, 2001 WL 95804, at *3 (10th Cir. Feb. 5, 2001) (court entitled to consider evidence over defendant and government's objections in sentencing defendant). Over the objection of defendant and the government, the Court found by a preponderance of the evidence that the DEA reports supported a three level enhancement. Therefore the enhancement does not constitute clear error.
IT IS THEREFORE ORDERED that defendant Motion For Reconsideration (Doc. #110) filed February 12, 2001 be and hereby OVERRULED.