United States v. Patricia Rudzavice , 583 F. App'x 389 ( 2014 )

Case: 13-11157 Document: 00512818905 Page: 1 Date Filed: 10/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-11157 October 29, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
PATRICIA LOUISE RUDZAVICE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-252-2
Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
Patricia Louise Rudzavice (“Rudzavice”) appeals her 21-month sentence
for her conviction for possession of stolen mail. She argues that the district
court erred in its guidelines calculation when it inappropriately applied a
presumption which led to a calculation that there were two hundred and fifty
or more victims. She argues that instead of a 6-level increase, she should have
received a 4-level increase. Based on our opinion in United States v. Moore,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-11157 Document: 00512818905 Page: 2 Date Filed: 10/29/2014
No. 13-11157
733 F.3d 161, 162 (5th Cir. 2013), which was decided after Rudzavice was
sentenced, the government concedes that the district court’s calculation of the
number of victims was erroneous.
The parties disagree over the standard of review. The government
argues that plain error review applies because Rudzavice failed to object to the
victim calculation at sentencing. Rudzavice concedes that she cannot
demonstrate plain error, but she makes several arguments for why plain error
review is inapplicable.
Rudzavice argues that the district court erred in determining that it was
without jurisdiction to consider her Federal Rule of Criminal Procedure 35(a)
motion because Rudzavice had filed a notice of appeal. The government
responds that we do not have jurisdiction to consider the dismissal of the Rule
35(a) motion because Rudzavice did not appeal the dismissal of her Rule 35(a)
motion. In her reply, Rudzavice concedes that she did not file a separate notice
of appeal from the order dismissing her Rule 35(a) motion. Therefore, we lack
jurisdiction to consider the dismissal of her Rule 35(a) motion. See Crumbley
v. Helem, 485 Fed. App’x 1, 4 (5th Cir. 2012); United States v. Richardson, 170
Fed. App’x 362, 363 (5th Cir. 2006). On a related note, Rudzavice’s argument
that we are permitted to remand based on Federal Rule of Criminal Procedure
37 and Federal Rule of Appellate Procedure 12.1 is unavailing. Because we do
not have jurisdiction to consider the dismissal of her Rule 35(a) motion, we
may not remand for a ruling on that motion.
Rudzavice suggests that even though she did not file a notice of appeal
as to her Rule 35(a) motion, the Rule 35(a) motion was sufficient to preserve
her sentencing argument for appeal. In United States v. Lopez, 26 F.3d 512,
518 (5th Cir. 1994), we held that the time limit in a previous version of Federal
Rule of Criminal Procedure 35 was jurisdictional. The current version of Rule
35 provides in relevant part: “(a) Correcting Clear Error. Within 14 days after
2
Case: 13-11157 Document: 00512818905 Page: 3 Date Filed: 10/29/2014
No. 13-11157
sentencing, the court may correct a sentence that resulted from arithmetical,
technical, or other clear error.” FED. R. CRIM. P. 35(a). Furthermore,
subsection (c) of Rule 35 provides: “As used in this rule, ‘sentencing’ means the
oral announcement of the sentence.” FED. R. CRIM. P. 35(c).
Here, Rudzavice’s sentence was orally announced on October 8, 2013.
She filed her Rule 35(a) motion on October 25, 2013. That filing fell outside
the 14-day window for filing a Rule 35(a) motion. In her reply, Rudzavice urges
us to consider her Rule 35(a) motion to be timely because our opinion in Moore
was issued outside her 14-day window to file a Rule 35(a) motion. She cites no
authority for this tolling argument, and we are unaware of any such authority.
Therefore, we hold that her Rule 35(a) motion was untimely. Furthermore,
Rudzavice failed to cite any authority for the proposition that an untimely Rule
35(a) motion preserves an issue for appeal, and we are unware of any such
authority. Therefore, we hold that her untimely Rule 35(a) motion did not
preserve the sentencing issue for appeal and our review is for plain error.
Rudzavice concedes that she cannot demonstrate plain error.
Furthermore, she has failed to demonstrate that a different standard of review
is applicable to her case. Therefore, we affirm the district court.
AFFIRMED.
3