United States v. Norris Wilson , 307 F. App'x 314 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 12, 2009
No. 08-12018 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00010-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORRIS WILSON,
a.k.a. Bullhead,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 12, 2009)
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
Norris Wilson is a federal prison inmate serving a sentence of 224 months
that was imposed following his conviction on a plea of guilty of conspiracy to
possess with intent to distribute and to distribute crack cocaine, in violation of 21
U.S.C. § 846.1 On August 3, 2007, Wilson moved the district court pursuant to 18
U.S.C. § 3582(c)(2) to reduce his sentence based on Amendment 706 to the
Sentencing Guidelines. The district court, in an order entered on March 31, 2008,
recalculated Wilson’s offense level at 30. At criminal history category V, the
sentence range came to 151 to 188 months’ imprisonment, lower than the 188 to
235 range the court used initially in fashioning Wilson’s sentence. Although it
lowered Wilson’s sentence range, the court denied Wilson’s § 3582(c)(2) motion.
It did so “based on factors identified in 18 U.S.C. § 3553(a), namely the history
and characteristics of the defendant and the need to protect the public from further
crimes of the defendant.”2
On April 14, 2008, Wilson moved the district court to reconsider its March
31 order. On April 16, while the motion was pending, he filed a notice of appeal,
challenging the March 31order. On June 23, 2008, the court denied the motion for
reconsideration on the ground that Wilson’s filing of the notice of appeal had
1
The district court’s probation office, and subsequently the district court, set Wilson’s base
offense level at 32 pursuant to U.S.S.G. § 2D1.1, having found that Wilson’s offense involved at
least 50 grams but less than 150 grams of crack cocaine (53 grams were attributable to Wilson).
There were no adjustments, so the total offense level was 32. This level coupled to a criminal
history category of V yielded a sentence range of 188 to 235 months’ imprisonment.
2
The court noted that Wilson had three previous felony drug convictions.
2
divested the court of jurisdiction to consider the motion on its merits. Wilson now
appeals.
The filing of a notice of appeal normally divests the district court of
jurisdiction over matters concerned in the appeal and transfers jurisdiction over
those matters to the court of appeals. Shewchun v. United States, 797 F.2d 941,
942 (11th Cir. 1986). The question this appeal presents, therefore, is whether
Wilson’s filing of the motion for reconsideration on April 14 gave the district court
the authority to entertain the motion notwithstanding Wilson’s subsequent filing of
the notice of appeal.
A defendant in a criminal case must file a notice of appeal within 10 days of
the entry of judgment. Fed.R.App.P. 4(b)(1)(A). However, if a defendant timely
files one of the tolling motions listed under Rule 4(b)(3), then the notice of appeal
is not effective until the date of the entry of the order disposing of the tolling
motion, or until the date of the entry of the judgment of conviction, whichever is
later. Fed.R.App.P. 4(b)(3)(B). The three tolling motions listed in Rule 4(b)(3)(C)
include a motion for judgment of acquittal, a motion for new trial, and a motion for
arrest of judgment. Fed.R.App.P. 4(b)(3)(A). Moreover, “[a] valid notice of
appeal is effective–without amendment–to appeal from an order disposing of any
of the motions referred to in Rule 4(b)(3)(A).” Fed.R.App.P. 4(b)(3)(C).
3
The Federal Rules of Criminal Procedure do not expressly authorize the
filing of a motion to reconsider an order by the district court. Nonetheless, “the
timely filing of such a motion in a criminal action tolls the time for filing a notice
of appeal and the time begins to run anew following disposition of the motion.”
United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir. 1992) (citing United
States v. Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976)). In this
case, the motion for reconsideration was timely since it was filed within the period
of time allotted for appealing the March 31 order. Vicaria, 963 F.2d at 1414.
Hence, the April 16 notice of appeal did not transfer jurisdiction to this court, i.e.,
it did not oust the district court of jurisdiction, until the district court entered its
June 23 order denying Wilson’s motion for reconsideration.
The district court’s order of June 23, 2008, denying Wilson’s motion for
reconsideration on the ground that the court lacked jurisdiction to entertain it, is
accordingly vacated, and the case is remanded with the instruction that the district
court pass on the merits of Wilson’s motion for reconsideration.
VACATED and REMANDED, with instruction.
4