USA v. Mark Shaw

Filing

Opinion issued by court as to Appellant Mark Adam Shaw. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 10/11/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14216
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-00065-CG-C-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ADAM SHAW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(October 11, 2017)
Before HULL, WILSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Defendant Mark Shaw appeals the district court’s denial of his motion for
reconsideration of the district court’s order granting his motion for sentence
reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782 to the Sentencing
Guidelines. On appeal, Defendant argues that the district court abused its
discretion in recalculating his guideline range during the § 3582(c)(2) proceeding
by declining to give him credit for time he served in state custody. We do not
reach the merits of Defendant’s argument, however, because we conclude that the
district court lacked jurisdiction to entertain Defendant’s motion for
reconsideration.
I.

BACKGROUND
In 2009, Defendant pled guilty to possession of a listed chemical with intent

to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c). The
Presentence Investigation Report assigned him a base offense level of 30 under
U.S.S.G. § 2D1.1(c)(5). He received several enhancements and adjustments,
resulting in an adjusted offense level of 38. With a three-level reduction for
acceptance of responsibility, his total offense level was 35. Based on a total
offense level of 35 and a criminal history category of V, Defendant’s guideline
range was 262 to 327 months’ imprisonment. However, because the statutory
maximum sentence was 240 months, his guideline range became 240 months’
imprisonment pursuant to U.S.S.G. § 5G1.1(a).
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At the sentencing hearing, the district court sustained Defendant’s objections
to certain enhancements, resulting in an amended guideline range of 168 to 240
months’ imprisonment. The Government filed a substantial assistance motion,
recommending that Defendant receive a 30% reduction from the low end of the
guideline range, or in other words, approximately a 118-month sentence.
Defendant requested an even greater departure on the basis that he would not
receive credit for a period of time he spent in custody on related state charges. The
district court granted the Government’s substantial assistance motion and stated
that it would credit Defendant for the time spent in custody since the issuance date
of the federal writ: May 6, 2009. The district court declined to give Defendant
credit for time spent in state custody prior to issuance of the federal writ. The
district court sentenced Defendant to 118 months’ imprisonment. In the written
judgment, the district court recommended that the Bureau of Prisons credit
Defendant for time served from May 6, 2009.
In January 2013, Defendant filed a motion to correct sentence pursuant to
Federal Rule of Criminal Procedure 36. He argued that the district court had
intended to credit him for time served in state custody on related charges from May
2009 until his sentencing date in December 2010. In an endorsed order, the district
court denied Defendant’s motion, stating that the judgment accurately reflected the
court’s intent to recommend that the Bureau of Prisons credit Defendant for the
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time spent in state custody. However, the district court’s recommendation could
not be carried out because the time was credited to another sentence. Defendant
filed a subsequent Rule 36 motion, which was also denied.
In November 2014, Defendant filed a motion to reduce his sentence pursuant
to 18 U.S.C. § 3582(c)(2) and Amendment 782. The district court thereafter issued
an order stating that a reduction of sentence based on Amendment 782 may be
appropriate, as Defendant’s amended guideline range based on Amendment 782
was 140 to 175 months’ imprisonment. Because Defendant had received a
downward departure for substantial assistance at his original sentencing hearing,
the district court determined that a comparable departure would be to 98 months’
imprisonment. The district court stated that unless either party filed any written
objections, it would reduce Defendant’s sentence to 98 months’ imprisonment.
The Government indicated that it had no objection to the reduction.
On December 29, 2014, the district court granted Defendant’s motion and
reduced his sentence to 98 months’ imprisonment, effective November 1, 2015.
Neither party appealed this order.
Nearly one year later, in December 2015, Defendant filed the present pro se
motion, which he styled as a motion for reconsideration of the district court’s order
granting his § 3582(c)(2) motion. He asked the court to use its discretion under

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U.S.S.G. § 5G1.3(b) to award him credit for the 19 months and 10 days he served
in state custody.
The Government filed a response, arguing that the district court could not
award credit for time served under § 5G1.3(b), where the district court had not
awarded the credit at the original sentencing hearing.
In an endorsed order, the district court denied Defendant’s motion for
reconsideration for the reasons stated in the Government’s motion.
II.

DISCUSSION
Defendant now appeals, arguing that the district court abused its discretion

during the § 3582(c)(2) proceeding by not awarding him credit under § 5G1.3(b)
for the time he spent in state custody. We do not reach this issue, however,
because the district court lacked jurisdiction to consider Defendant’s motion for
reconsideration.
We are required to consider the district court’s jurisdiction sua sponte.
United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007). We review de
novo whether a district court had jurisdiction to modify a defendant’s sentence.
United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010).
“The authority of a district court to modify an imprisonment sentence is
narrowly limited by statute.” Id. at 1194–95. Section 3582(c) of Title 18 provides
that the district court may not modify a defendant’s imprisonment sentence except:
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(1) if the Bureau of Prisons files a motion and extraordinary or compelling
circumstances warrant modification or if the defendant is at least 70 years old and
has served 30 years in prison; (2) if the modification is expressly permitted by
statute or Federal Rule of Criminal Procedure 35; or (3) if the defendant’s original
sentencing range has subsequently been lowered as a result of an amendment to the
Guidelines by the Sentencing Commission. 18 U.S.C. § 3582(c).
Rule 35(a) provides that a court may correct a sentence containing
arithmetical, technical, or clear error within 14 days after sentencing. Fed. R.
Crim. P. 35(a). We have held that Rule 35’s time limit is jurisdictional and a
district court has no “inherent authority” to modify a sentence outside of those time
limits. See Phillips, 597 F.3d at 1196–97 (citing United States v. Diaz-Clark, 292
F.3d 1310, 1319 (11th Cir. 2002)). Moreover, we have applied the time limits of
Rule 35(a) to sentencing proceedings under § 3582(c)(2). Phillips, 597 F.3d at
1198–99. In Phillips, the district court granted the defendant’s § 3582(c)(2)
motion and reduced his sentence. Id. at 1192. After expiration of the time period
for filing a Rule 35(a) motion, the Government filed a motion for reconsideration
of the district court’s order granting the defendant’s § 3582(c)(2) motion. Id. at
1193. The district court later granted the Government’s motion for
reconsideration, set aside the reduced sentence, and re-imposed the original
sentence. Id. On appeal, we concluded that when a district court grants a
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§ 3582(c)(2) motion and reduces a defendant’s sentence, the district court is
“again” sentencing the defendant and “the strictures of Rule 35 apply.” Id. at
1199. Thus, we determined that the district court lacked jurisdiction to modify the
defendant’s sentence pursuant to the Government’s motion for reconsideration
once the time period under Rule 35 had expired. Id.
Here, because the district court granted Defendant’s § 3582(c)(2) motion and
reduced his sentence from 118 months to 98 months’ imprisonment, the district
court’s authority to further modify Defendant’s sentence was limited. See 18
U.S.C. § 3582(c); Phillips, 597 F.3d at 1195–96, 1199. “The unambiguous
language of § 3582(c)(1)(B) indicates that, absent other express statutory authority,
modification of an imprisonment sentence can only be done pursuant to Rule 35.”
Phillips, 597 F.3d at 1195; see also United States v. Anderson, 772 F.3d 662, 667
(11th Cir. 2014) (explaining that once a new sentence is imposed under
§ 3582(c)(2), the requirements of Rule 35 apply and the district court only has 14
days to correct a sentence). The district court granted Defendant’s § 3582(c)(2)
motion on December 29, 2014. However, Defendant did not file his motion for
reconsideration until one year later, in December 2015, which was well beyond
Rule 35(a)’s 14-day period. Fed. R. Crim. P. 35(a). The district court therefore
lacked jurisdiction to entertain Defendant’s motion for reconsideration because it

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was without authority to modify Defendant’s sentence after the 14-day period
expired. Phillips, 597 F.3d at 1195–96, 1199.1
Accordingly, we vacate the district court’s order denying Defendant’s
motion for reconsideration of its order granting his § 3582(c)(2) motion and
remand with instructions for the district court to enter an order dismissing
Defendant’s motion for reconsideration for lack of jurisdiction.
VACATED AND REMANDED.

1

It is of no consequence that the Government does not argue that the district court lacked
jurisdiction to consider Defendant’s motion for reconsideration. Indeed, we have held that the
failure to raise the Rule 35 time limit does not waive the issue on appeal. See United States v.
Morrison, 204 F.3d 1091, 1093 (11th Cir. 2000).
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