United States v. Reggie White , 251 F. App'x 658 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 19, 2007
No. 06-15155 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00728-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGGIE WHITE,
a.k.a. Reggie A. White,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 19, 2007)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Reggie White appeals his reduced 204-month sentence, which was imposed
following the Government’s second motion to reduce sentence, pursuant to Federal
Rule of Criminal Procedure 35(b). White was originally sentenced prior to
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). He contends the district court, in
deciding the appropriate reduction under Rule 35, should have applied the law in
effect at the time of the “new and separate re-sentencing,” which would have
prohibited, under Apprendi and its progeny, a life-sentence starting point. Instead,
he argues, the district court should have used, as “the starting point,” 35 years’
imprisonment, i.e., the maximum constitutionally permissible sentence. White
asserts the district court erred by mischaracterizing his argument as a collateral
attack on his original sentence and finding it could not take into consideration the
fact his original sentence was “achieved only through a violation of [his]
constitutional rights.”
Ordinarily, the district court’s decision to grant or deny a Rule 35(b) motion
is a discretionary decision that is not subject to appeal. United States v. Manella,
86 F.3d 201, 203 (11th Cir. 1996). In this case, however, White does not challenge
the merits of the district court’s Rule 35(b) determination, but instead asserts his
reduced sentence was imposed in violation of his statutory and constitutional
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rights, and, therefore, we have jurisdiction to consider his appeal. See id. We
review such questions of law de novo. Id.Rule 35(a) provides: “Within 7 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other clear error.” Fed. R.
Crim. P. 35(a). Rule 35(b), in pertinent part, provides that a the district court may,
upon motion by the government, reduce a sentence for the defendant’s substantial
assistance to the government. See Fed. R. Crim. P. 35(b).
White’s argument that Rule 35 permits a new sentencing is based on a since-
abrogated version of Rule 35(a) that permitted the district court to correct an illegal
sentence at any time. See Fed. R. Crim. P. 35(a) (1983). Contrary to White’s
assertion, Rule 35(b), by its own terms, provides for a reduction of a sentence, not
the vacating of a sentence and a resentencing. See Fed. R. Crim. P. 35(b). White is
not permitted to have the benefit of Rule 35(a)’s correction of a sentence, which
was foreclosed to him as untimely, simply by subsuming a request for it within his
Rule 35(b) argument.
Second, White’s argument is essentially an attempt to avoid the prohibitions
against: (1) the retroactive application of Apprendi to cases on collateral review;
and (2) a petitioner bringing a collateral attack against his sentence through Rule
35(b). See McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001);
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Fernandez v. United States, 941 F.2d 1488, 1492 (11th Cir. 1991). Because he is
no longer permitted to bring a collateral attack on his sentence by making a Rule
35(b) motion himself, White attempts to attack his sentence collaterally through his
response to the Government’s Rule 35(b) motion. He is not permitted to evade the
constraints of amended Rule 35(b) and the rule against the retroactive application
of Apprendi to cases on collateral review by couching his request in terms of the
proper “starting point” for the district court’s reduction “calculus” in the Rule
35(b) motion. Moreover, the only support he cites for the assertion that his
argument is not a collateral attack on his sentence is a case based on the previous
version of Rule 35. See United States v. Shillingford, 586 F.2d 372, 375 (5th Cir.
1978).1
In conclusion, Apprendi had not been decided when White was sentenced
originally and it is not retroactively applicable to cases on collateral review. Thus,
the district court did not err in using White’s original sentence as a starting point
from which to reduce his sentence for substantial assistance. Accordingly, we
affirm White’s sentence.
AFFIRMED.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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