United States v. Shank ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4899
ANDREW G. SHANK,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CR-01-82-WMN)
December 3, 2004
Decided: January 25, 2005
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by published opinion. Judge Motz wrote the opinion, in
which Judge Gregory and Judge Shedd joined.
COUNSEL
ARGUED: Mark Thomas Stancil, BAKER BOTTS, Washington,
D.C., for Appellant. Robert Reeves Harding, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee. ON BRIEF: Paul F. Enzinna, BAKER
BOTTS, Washington, D.C., for Appellant. Thomas M. DiBiagio,
United States Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. SHANK
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Andrew G. Shank appeals the denial of his Fed. R. Crim. P. 35
motion. Because former Rule 35(c), now Rule 35(a),1 imposes a
seven-day jurisdictional time limit and the district court failed to act
within that period, we dismiss the appeal.
I.
On February 2, 2002, Shank entered into a plea agreement with the
United States Attorney’s Office for the District of Maryland, in which
he agreed to plead guilty to one count of bank fraud in violation of
18 U.S.C. § 1344 (2000). In the statement of facts accompanying his
plea agreement, Shank admitted misrepresenting his assets and liabili-
ties both to obtain various bank loans and in connection with his
bankruptcy filing. As part of the plea agreement, for purposes of sen-
tencing, the parties agreed that the total loss amount attributable to
Shank’s fraud was between $400,000 and $1,000,000. However, they
specifically left open for determination by the court the loss amount
caused to Mercantile Safe Deposit & Trust Company and Mercantile
Mortgage Corporation (referred to jointly as "Mercantile").
At the June 25, 2002 sentencing proceeding, the district court
determined the loss to Mercantile to be $305,000 and sentenced
Shank under the United States Sentencing Guidelines to 41 months
imprisonment. The judgment was entered on June 27, 2002.
On July 3, 2002, Shank filed a Rule 35(c) motion seeking to correct
his sentence because "the amount of loss as to Mercantile was calcu-
lated incorrectly."2 On November 1, 2002, the district court denied his
motion, and on November 8, 2002, Shank appealed.
1
The 2002 amendments to Rule 35 moved the substantive provisions
of Rule 35(c), under which Shank filed the motion at issue here, to Rule
35(a). Fed. R. Crim. P. 35 advisory committee’s note on 2002 amend-
ments.
2
Shank also makes additional substantive arguments. But, because we
hold that the district court lacked jurisdiction to act on Shank’s motion
when it did, we do not consider any of his substantive arguments.
UNITED STATES v. SHANK 3
II.
The dispositive question presented here is whether former Rule
35(c), now Rule 35(a), divests a district court of jurisdiction to correct
sentencing errors more than seven days after sentencing. A review of
the history of the rule helps to resolve this question.
Before the Sentencing Reform Act of 1984 became effective on
November 1, 1987, Rule 35 allowed a district court to "correct an ille-
gal sentence at any time" and to "correct a sentence imposed in an
illegal manner" within 120 days of certain triggers. See text following
Fed. R. Crim. P. 35.
The Sentencing Reform Act deleted these provisions, however, and
"the only circumstances in which a sentence could then be reduced
were on remand after appeal or upon motion of the government to
recognize a defendant’s cooperation." 3 Wright, King & Klein, Fed-
eral Practice and Procedure § 581, at 627 (3d ed. 2004).
Then, in 1991, due in part to a decision of this court recognizing
the "inherent power" of a federal court "to correct an acknowledged
and obvious" sentencing mistake within the time allowed for filing a
notice of appeal, United States v. Cook, 890 F.2d 672, 675 (4th Cir.
1989), Rule 35 was amended to include subdivision (c), which pro-
vided sentencing courts with a narrow window of seven days within
which to correct "arithmetical, technical, or other clear error." Fed. R.
Crim. P. 35 advisory committee’s note on 1991 amendments; Wright,
King & Klein, supra, § 585.2, at 646. "The authority to correct a sen-
tence under this subdivision [wa]s intended to be very narrow and to
extend only to those cases in which an obvious error or mistake ha[d]
occurred . . . ." Fed. R. Crim. P. 35 advisory committee’s note on
1991 amendments.
The 1991 version of Rule 35(c), under which Shank moved for
relief, provided in full:
Correction of Sentence by Sentencing Court. The court,
acting within 7 days after the imposition of sentence, may
correct a sentence that was imposed as a result of arithmeti-
cal, technical, or other clear error.
4 UNITED STATES v. SHANK
Fed. R. Crim. P. 35(c) (2002).3
III.
Shank argues that "if a defendant timely invokes Rule 35 (i.e.,
within seven days), the district court is vested with jurisdiction to dis-
pose of that motion," regardless of how long it takes the court to do
so. Reply Brief at 1-2. Although there is a certain intuitive logic to
this argument, we must reject it for several reasons.
First, the plain language of the rule — "[t]he court, acting within
7 days after the imposition of sentence" — makes clear that the court
must act within seven days of sentencing, and that a timely motion by
the defendant does not extend this period. Fed. R. Crim. P. 35(c)
(2002); cf. Fed. R. Crim. P. 35(a) (2004) ("Within 7 days after sen-
tencing, the court may correct a sentence . . . ."). Indeed, although the
rule does not bar a motion by a party, it does not contemplate or
require one. Rather, it provides that "[t]he court, acting within 7 days
. . . may correct a sentence . . . ." Fed. R. Crim. P. 35(c) (2002)
(emphasis added); cf. Fed. R. Crim. P. 35(a) (2004) ("Within 7 days
after sentencing, the court may correct a sentence . . . .") (emphasis
added). The significance of this language becomes even clearer in
light of other provisions of Rule 35. See Fed. R. Crim. P. 35(b)(1)
(2004) ("Upon the government’s motion made within one year of sen-
tencing . . . ."); Fed. R. Crim. P. 35(b)(2) (2004) ("Upon the govern-
ment’s motion made more than one year after sentencing . . . ."); Fed.
R. Crim. P. 35(b) (2002) ("If the Government so moves within one
year after the sentence is imposed . . . ."). In sum, the rule’s language
makes plain that "whether it acts on its own or on the suggestion or
motion of a party, the court may only act within seven days after the
3
The wording of the current rule, which, as explained above, is now
at Fed. R. Crim. P. 35(a), differs slightly from the old Rule 35(c):
Correcting Clear Error. 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) (2004). However, "[n]o change in practice is
intended" by the slight change in wording in the new rule. See Fed. R.
Crim. P. 35 advisory committee’s note on 2002 amendments.
UNITED STATES v. SHANK 5
imposition of sentence." Wright, King & Klein, supra, § 585.2, at
649.
In addition, the interplay between Rule 35 and Fed. R. App. P. 4(b)
plainly indicates that jurisdiction to correct a sentence for arithmeti-
cal, technical, or other clear error under Rule 35 must lapse after
seven days. Rule 4(b)(1) provides that "[i]n a criminal case, a defen-
dant’s notice of appeal must be filed" within 10 days of "the entry of
either the judgment or the order being appealed." Fed. R. App. P.
4(b)(1). In this case, therefore, excluding weekends and legal holi-
days, see Fed. R. App. P. 26(a)(2), Shank had until July 12, 2002 to
appeal his judgment of conviction.
Rule 4(b) also provides that if a defendant makes one of several
enumerated timely motions — for a judgment of acquittal under Rule
29, for a new trial under Rule 33, or for arrest of judgment under Rule
34 — his 10-day appeal period will not begin to run until after the
court decides that motion. See Fed. R. App. P. 4(b)(3). Notably absent
from this list in 2002, when Shank filed his motion, was Rule 35. See
Fed. R. App. P. 4(b)(3) (2002). The 2002 amendments to the rule
clarified that this omission was intentional — for newly amended
Rule 4(b) provides: "The filing of a motion under Federal Rule of
Criminal Procedure 35(a) does not suspend the time for filing a notice
of appeal from a judgment of conviction." Fed. R. App. P. 4(b)(5)
(2004).
Thus, the only way that Shank could have preserved his appeal
rights would have been to file an appeal from his judgment of convic-
tion by July 12, several days after filing his Rule 35 motion. This con-
clusion is amply supported by the Advisory Committee Notes, which
explain why the period of seven days was chosen. "The Committee
contemplates that the court would enter an order correcting the sen-
tence and that such order must be entered within the seven (7) day
period so that the appellate process (if a timely appeal is taken) may
proceed without delay and without jurisdictional confusion." Fed. R.
Crim. P. 35 advisory committee’s note on 1991 amendments. The
meaning is clear: should a court deny a motion under the seven-day
rule, either explicitly or implicitly (by failing to act), a defendant still
has ample time in which to appeal his sentence, since such denial will
always occur before the 10-day appeal period has run.
6 UNITED STATES v. SHANK
Finally, we note that the vast majority of our sister circuits have
specifically rejected Shank’s view, instead holding, as we do, that the
rule clearly imposes a seven-day jurisdictional limit. See, e.g., United
States v. Wisch, 275 F.3d 620, 626 (7th Cir. 2001) ("The time limit
is jurisdictional, and, furthermore, the motion must be ruled on by the
district court within seven days, not simply filed with the clerk of
court during that time.") (citation omitted); id. ("[A] court’s failure to
rule is functionally equivalent to an outright denial on the merits, thus
making the judgment final on the date the district judge’s power to
alter the sentence expired.") (internal quotation marks and citation
omitted); United States v. Austin, 217 F.3d 595, 598 (8th Cir. 2000)
("The text of Rule 35(c) plainly commands the court to act within
seven days, and thus after seven days the motion is effectively denied
and any doubt concerning the finality of the sentence is ended.");
United States v. Morrison, 204 F.3d 1091, 1092 (11th Cir. 2000)
(holding that a district court lacks jurisdiction under Rule 35 "to cor-
rect a sentence if the court sets the sentence aside within seven days
of orally pronouncing it in open court but does not impose a new sen-
tence until more than seven days have passed"); United States v.
Barragan-Mendoza, 174 F.3d 1024, 1030 (9th Cir. 1999) (adopting
view that "a district court’s jurisdiction over a Rule 35(c) motion can
last no longer than the seven days that the district court has to act on
the motion after the imposition of sentence"); United States v. Black-
well, 81 F.3d 945, 948 & n.4 (10th Cir. 1996) (noting that Rule
35(c)’s seven-day time limit is jurisdictional); United States v. Lopez,
26 F.3d 512, 519 n.8 (5th Cir. 1994) ("We therefore agree . . . that
the seven-day limit in Rule 35(c) constitutes a jurisdictional restraint
on the district court’s power to alter a sentence."); United States v.
Morillo, 8 F.3d 864, 869 (1st Cir. 1993) ("[I]f a motion is timely
made but is not decided within the seven-day period, the judge’s
power to act under the rule subsides and the pending motion is
deemed to be denied as of that date.").4
4
Indeed, the 2002 amendments to Fed. R. App. P. 4(b) (discussed in
text above) undermine the only two cases arguably adopting Shank’s
position. See United States v. Carmouche, 138 F.3d 1014, 1016 (5th Cir.
1998) (holding that Rule 35(c) motion tolls period for filing appeal);
United States v. Corey, 999 F.2d 493, 496 (10th Cir. 1993) (same).
UNITED STATES v. SHANK 7
It is for these reasons that we conclude that former Rule 35(c), now
Rule 35(a), establishes a seven-day jurisdictional limit.
IV.
In this case, the district court effectively denied Shank’s Rule 35
motion on July 5, 2002, seven days after sentencing (excluding the
intervening weekend and legal holiday), leaving Shank seven more
days (including the intervening weekend) to file his notice of appeal.5
Because Shank did not note his appeal within this period, and because
the district court lacked jurisdiction to resolve his Rule 35 motion
when it did — five months after he filed that motion — we must dis-
miss Shank’s appeal.6
DISMISSED
5
Rule 35’s seven-day time period for correcting a sentence begins on
the day the district court orally pronounces sentence, United States v.
Layman, 116 F.3d 105, 108 (4th Cir. 1997) — in this case, June 25,
2002. Rule 4(b)’s 10-day time period for filing a notice of appeal begins
on the day the judgment is entered on the criminal docket, Fed. R. App.
P. 4(b)(6) — in this case, June 27, 2002.
6
Shank additionally argues that principles of "equitable tolling" apply
to save his untimely notice of appeal. He relies on Irwin v. Dep’t of Vet-
erans Affairs, 498 U.S. 89, 96 (1990), in which the Supreme Court
explained that "equitable tolling" can apply to suits "where the complain-
ant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass." Shank argues that by setting his
Rule 35 motion "for a hearing nearly four months after it was filed, then
ruling on that motion as if it had jurisdiction to do so, the district court
and Appellee misled Appellant into believing he maintained the opportu-
nity to file a timely notice of appeal from that judgment." Reply Brief at
3-4. This argument is frivolous. Irwin provides no authority for applica-
tion of equitable tolling here. Rather, Irwin considered the filing require-
ment of an inapposite provision of federal law, 42 U.S.C. § 2000e-16(c),
and rejected the petitioner’s claim that this filing requirement had been
equitably tolled. Moreover, and just as important, equitable tolling prin-
ciples cannot, and do not, work to impose responsibility on the district
court for Shank’s failure to preserve his legal rights.