United States v. Fred Sutherland , 678 F. App'x 226 ( 2017 )


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  •      Case: 16-20216      Document: 00513894182         Page: 1    Date Filed: 03/02/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-20216                              FILED
    Summary Calendar                        March 2, 2017
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    FRED V. SUTHERLAND,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:13-CR-739-1
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Fred V. Sutherland pleaded guilty pursuant to a written plea agreement
    to possession of counterfeit securities and was sentenced to 30 months in prison
    and three years of supervised release. The district court subsequently issued
    an amended judgment, which stated that it was being amended pursuant to
    Federal Rule of Criminal Procedure 36 to correct a clerical mistake. The
    district court stated in a separate order that a special condition prohibiting
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    No. 16-20216
    Sutherland “from employment or acting in a fiduciary role” during his
    supervised release was changed to clarify that he was “prohibited from
    employment in a fiduciary role, or acting in a fiduciary role,” during his
    supervised release. The order stated further, “This condition is not intended
    as a prohibition from all employment.” Both the original judgment and the
    amended judgment included the standard condition of supervised release
    requiring the defendant to “work regularly at a lawful occupation,” unless
    excused by the probation officer for various reasons.
    Sutherland argues that (1) the district court lacked authority to modify
    the terms of his supervised release in an amended judgment pursuant to Rule
    36 because the modification altered his legal rights; (2) the district court
    reversibly erred by accepting his guilty plea because the factual basis was
    insufficient to support the plea; and (3) the district court erred in ordering
    restitution that exceeded the statutory maximum. The Government contends
    that the appeal should be dismissed as untimely and that Sutherland waived
    his claims by waiving his right to appeal and, as to his second claim, by
    pleading guilty.
    The untimely filing of a notice of appeal in a criminal case is not
    jurisdictional and can be waived if the Government does not raise the issue.
    See United States v. Martinez, 
    496 F.3d 387
    , 388-89 (5th Cir. 2007); United
    States v. Fearce, 455 F. App’x 528, 529 (5th Cir. 2011).          However, the
    Government asserts that it does not waive the issue in this case, and thus we
    will not disregard it. See United States v. Lister, 561 F. App’x 415, 416 (5th
    Cir. 2014).
    A criminal appeal must be filed within 14 days of the entry of the district
    court’s judgment or the filing of the Government’s notice of appeal. FED.
    R. APP. P. 4(b)(1)(A). Sutherland’s April 7, 2016, notice of appeal was filed
    2
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    No. 16-20216
    within 14 days after the March 30, 2016, entry of the amended judgment.
    However, because Sutherland’s notice of appeal was filed almost one year after
    the district court entered the original judgment on April 15, 2015, the notice of
    appeal was untimely as to the original judgment.
    Sutherland argues that the amended judgment revised his legal rights
    and obligations by significantly altering the terms of his supervised release
    regarding employment, and thus the period for appealing the district court’s
    judgment began anew with the filing of the amended judgment. However, the
    record does not support his argument. Sutherland has not shown that the
    supervised release condition at issue created a genuine ambiguity or that the
    district court’s clarification of the condition constituted a substantive change.
    See Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 
    344 U.S. 206
    , 211-12 (1952). Sutherland’s arguments challenging his guilty plea and
    the district court’s restitution order are therefore untimely.      Accordingly,
    Sutherland’s challenge to the district court’s judgment is DISMISSED IN
    PART as untimely. For the same reasons, Sutherland has not shown that the
    district court lacked authority under Rule 36 to amend the judgment.
    Accordingly, we pretermit our consideration of whether Sutherland waived
    this issue, and the district court’s judgment is AFFIRMED IN PART.
    3
    

Document Info

Docket Number: 16-20216

Citation Numbers: 678 F. App'x 226

Filed Date: 3/2/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023