United States v. Lena Celedon , 353 F. App'x 278 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 18, 2009
No. 08-17193 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00314-CR-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LENA CELEDON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 18, 2009)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
After pleading guilty, Lena Celedon appeals the denial of her motion for a
new sentencing. After review, we affirm.
I. BACKGROUND FACTS
Celedon was a courier for a large drug organization that imported cocaine
from Mexico to the United States. Celedon made ten trips transporting drugs from
Texas or Mexico to Houston, Texas or Atlanta, Georgia. Celedon also transported
drug proceeds back to Texas. After receiving a tip from a confidential source, law
enforcement stopped Celedon’s tractor-trailer at a Texas border checkpoint and
found a shipment of cocaine. Celedon cooperated with law enforcement and
completed a controlled delivery of “sham” cocaine under the supervision of law
enforcement agents.
Celedon pled guilty to conspiracy to possess with intent to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(A)(ii), and money laundering, in violation of 18 U.S.C. § 1956. At the
sentencing hearing, the district court denied Celedon’s request for a minor-role
reduction, but granted the government’s U.S.S.G. § 5K1.1 motion based on
Celedon’s substantial assistance. The district court sentenced Celedon to 135
months’ imprisonment and five years’ supervised release.1 On September 12,
2008, the district court entered its judgment and commitment. Celedon filed a
1
Celedon does not dispute her original advisory guideline range was 262 to 327 months’
imprisonment. The § 5K1.1 motion resulted in a 135-month sentence.
2
notice of appeal on September 17, 2008, but voluntarily dismissed her appeal on
October 27, 2008.
On October 29, 2008, Celedon filed a “Motion for New Sentencing,” citing
Federal Rule of Criminal Procedure 33. Celedon argued that her Sixth
Amendment right to confront witnesses was violated because one of her co-
defendants testified at his sentencing hearing and exaggerated Celedon’s
culpability in the cocaine conspiracy. Because the co-defendant’s sentencing
preceded Celedon’s, Celedon claimed that the co-defendant’s testimony led the
district court to refuse to give Celedon a lower sentence. Celedon argued that she
was entitled to a resentencing “based on the new evidence that she discovered after
her sentencing.” The district court denied Celedon’s Rule 33 motion, concluding
that it did not have jurisdiction to modify her sentence. Celedon appealed.
II. DISCUSSION
Under 18 U.S.C. § 3582(c), a district court may not modify a term of
imprisonment once it has been imposed except: (1) upon motion of the Director of
the Bureau of Prisons (“BOP”); (2) when “expressly permitted by statute or by
Rule 35 of the Federal Rules of Criminal Procedure”; or (3) when the “term of
imprisonment [is] based on a sentencing range that has subsequently been
lowered” by an amendment to the Sentencing Guidelines. See 18 U.S.C.
3
§ 3582(c). It is undisputed that there has been no motion by the BOP Director to
modify Celedon’s sentence and no amendment to the Sentencing Guidelines that
subsequently lowered Celedon’s sentencing range. Thus, the district court had
jurisdiction to modify Celedon’s sentence only if permitted by statute or Rule 35,
pursuant to § 3582(c)(1)(B). This Court has concluded, based on § 3582(c)(1)(B),
that district courts lack “inherent authority” to modify a sentence. United States v.
Diaz-Clark, 292 F.3d 1301, 1316-18 (11th Cir. 2002). Thus, district courts may
modify a sentence only via (1) Rule 35, or (2) the express statutory authority
conferred by 28 U.S.C. § 2255. United States v. Diaz-Clark, 292 F.3d 1310, 1316-
18 (11th Cir. 2002).2
Here, the district court did not err in concluding it lacked jurisdiction to
modify Celedon’s sentence. Celedon brought her motion under Rule 33.
However, § 3582(c) prohibits a district court from modifying her sentence except
when permitted by Rule 35(a) or § 2255. Thus, the district court did not have
authority to modify Celedon’s sentence under Rule 33.
Further, even if Celedon’s motion for a new sentencing is construed as a
Rule 35(a) motion, the district court did not commit reversible error.3 Rule 35(a)
2
Whether the district court had jurisdiction to resentence a defendant “is a legal question
subject to plenary review.” Diaz-Clark, 292 F.3d at 1315.
3
Celedon does not argue that her motion should have been recharacterized as a § 2255
motion.
4
permits the district court “[w]ithin 7 days after sentencing” to “correct a sentence
that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P.
35(a). Celedon’s motion was not filed within the requisite seven-day period and
does not present an arithmetical or technical error.
We also reject Celedon’s argument that her alleged Sixth Amendment
violation constitutes “clear error.” Clear error within the meaning of Rule 35(a) is
limited to obvious errors that either resulted in an illegal sentence or those errors
that would almost certainly result in a remand on appeal. See United States v. Lett,
483 F.3d 782, 788 (11th Cir. 2007), cert. denied, 129 S. Ct. 31 (2008); United
States v. Yost, 185 F.3d 1178, 1181 (11th Cir. 2007). Celedon’s Sixth Amendment
claim cannot meet this standard under our precedent, which recognizes that the
Sixth Amendment right to confront witnesses is a trial right, not a sentencing right.
See United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005).
Celedon argues that her motion should have been granted as a motion for
reconsideration. The Federal Rules of Criminal Procedure do not provide a
mechanism for filing a motion for reconsideration. United States v. Vicaria, 963
F.2d 1412, 1413-14 (11th Cir 1992). We have considered motions for
reconsideration in criminal actions in the limited context of considering whether
they may act as tolling motions for purposes of filing a timely appeal. See id. In
5
any event, the district court lacks “inherent authority” to modify a sentence after it
is imposed. Diaz-Clark, 292 F.3d at 1316-18. Thus, under § 3582(c), the district
court does not have authority to modify a sentence through a motion for
reconsideration in the direct criminal proceedings. United States v. Dotz, 455 F.3d
644, 648 (6th Cir. 2006) (rejecting defendant’s “creative characterization” of his
Rule 35(a) motion as a motion for reconsideration and concluding that under
§ 3582(c)(2) “there is simply no such thing as a ‘motion to reconsider’ an
otherwise final sentence”).
For all these reasons, we affirm the district court’s denial of Celedon’s
motion for a new sentencing.
AFFIRMED.
6