United States v. Higgs ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-4-2007
    USA v. Higgs
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-3738
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 06-3738
    UNITED STATES OF AMERICA
    v.
    CHARLES HIGGS,
    agent of GOLDIE
    Charles Higgs,
    Appellant
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Crim. No. 04-cr-00554-2)
    District Judge: Hon. Garrett E. Brown, Jr., Chief Judge
    Submitted Under Third Circuit LAR 34.1(a)
    September 17, 2007
    Before: SLOVITER, SMITH, and WEIS, Circuit Judges
    (Filed October 4, 2007)
    John S. Furlong
    Furlong & Krasny
    West Trenton, NJ 08628
    Attorney for Appellant
    George S. Leone
    Office of United States Attorney
    Newark, NJ 07102
    John J. Hoffman
    Office of United States Attorney
    Trenton, NJ 08608
    Attorneys for Appellee
    OPINION OF THE COURT
    SLOVITER, Circuit Judge.
    This court has an obligation to inquire sua sponte into its
    own jurisdiction and, necessarily, into the jurisdiction of the
    District Court to enter the order on appeal. In the case before us,
    defendant Charles Higgs appeals from the order of the District
    Court denying his motion for reduction of sentence under Rule
    35(a) of the Federal Rules of Criminal Procedure. For the
    reasons set forth below in some detail, we conclude that the
    District Court lacked jurisdiction to enter the order.
    I.
    On October 29, 2004, Higgs waived indictment and pled
    guilty to a one-count information charging him with knowingly
    and intentionally conspiring with others to distribute and possess
    with intent to distribute five grams or more of cocaine base, in
    violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. In
    his plea agreement, Higgs also stipulated to having possessed a
    firearm in connection with drug trafficking.
    The District Court found, and both parties agreed, that
    Higgs’ adjusted offense level was 31 and his criminal history
    category was IV. This resulted in a guidelines range of 151 to
    188 months. On January 5, 2005, the District Court held a
    sentencing hearing and sentenced Higgs to 156 months
    imprisonment, along with five years of supervised release and a
    $3,500 fine. The sentencing took place one week before the
    Supreme Court’s watershed decision in United States v. Booker,
    
    543 U.S. 220
    (2005), announced January 12, 2005. Judgment on
    Higgs’ sentence was entered on January 14, 2005.
    2
    Rather than file a direct appeal with this court, Higgs
    chose, also on January 14, 2005, to move for a reduction of his
    sentence under Rule 35(a) which provides, “Correcting Clear
    Error. Within 7 days after sentencing, the court may correct a
    sentence that resulted from arithmetical, technical, or other clear
    error.” Appended to the motion was an Affidavit of counsel
    which noted the recent decision in Booker and its companion
    case, United States v. Fanfan, which made the Guidelines
    advisory. The affidavit concluded that “[u]nder these
    constitutional circumstances, defendant respectfully requests this
    Court review his sentence under Booker and Fanfan and make an
    independent determination of the propriety of his sentence,
    subject to the reasonableness standard articulated in United
    States v. Fanfan.” App. at 21.
    On January 24, 2005, ten days after the motion was filed,
    the District Court conducted a telephone conference on the
    motion, at which Higgs was not present. The Court stated that,
    in light of Booker, “we, of course, have guidelines . . . that are
    not dispositive.” App at 43. The Court then proceeded to
    consider a number of factors, including Higgs’ criminal history.
    The Court noted that Higgs was “a 26 year old male making his
    eighth appearance before the court for sentencing on a criminal
    matter, and [h]e had four misdemeanors which contributed no
    points toward the criminal history calculation, and someone who
    has spent a substantial portion of his, young adult life, in custody
    and has embroiled himself in a drug conspiracy within a year of
    release from state custody for distribution of cocaine . . . .” App.
    at 43. The Court also noted that Higgs’ “employment history
    was virtually nonexistent, despite having graduated from high
    school.” App. at 43. The Court stated, “[h]e seems to have
    gotten a substantial amount of money from drug dealing. His
    criminal record is significant, and his drug dealings are
    significant as well.” App. at 43-44. The Court concluded that,
    “considering all of the factors set forth in the pre-sentence report
    and all of those enumerated in the purposes of sentencing,” the
    pronounced sentence of 13 years was “reasonable, in light of the
    Supreme Court’s determination.” App. at 44. On January 25,
    2005, the District Court entered its order denying Higgs’ motion
    to reduce his sentence, leaving his 156-month prison term intact.
    3
    In a letter dated February 3, 2005, counsel for Higgs
    informed the District Court that Higgs had “heard of [the District
    Court’s] denial of his motion for reduction of sentence, and he
    immediately expressed a desire to appeal.” App. at 2. The
    District Court received Higgs’ hand-written notice of appeal on
    April 29, 2005. On January 26, 2006, we remanded Higgs’
    appeal to the District Court to determine whether counsel’s
    letter, which was not filed until February 8, 2006, should be
    construed as a notice of appeal. The District Court granted
    Higgs’ motion “for leave to appeal the Court’s order denying his
    motion for reconsideration of sentence nunc pro tunc . . . to
    February 5, 2005.” App. at 1.
    II.
    Higgs argues on appeal that the District Court erred in
    entertaining and ruling upon his Rule 35(a) motion outside of his
    presence and without giving him an opportunity to file a brief.
    We have jurisdiction over this appeal pursuant to both 28 U.S.C.
    § 1291, which provides for review of final decisions of the
    district courts, and 18 U.S.C. § 3742(a)(1), which provides for
    review of final sentences allegedly imposed in violation of the
    law.
    Rule 35(a) requires that any correction for “clear error”
    be made “[w]ithin 7 days after sentencing,” with sentencing
    defined by Rule 35(c) as “the oral announcement of the
    sentence” (and not the entry of judgment). Following briefing in
    this action, we asked the parties to advise this court of their
    views as to whether the time limitations in Rule 35(a) are
    jurisdictional. As the parties have recognized, the District
    Court’s disposition of the Rule 35(a) motion was not timely,
    because it occurred beyond the seven-day time limit for action
    imposed by Rule 35(a).
    We recognize that the consequences of following this rule
    seem to be harsh. After all, counsel filed the Rule 35(a) motion
    within seven days of the sentencing hearing, the time limit set
    forth in the Rule. However, the seven-day limit in the Rule does
    not apply to counsel’s motion. It is expressly in terms of the
    District Court’s action. A review of the Advisory Committee’s
    4
    notes shows that this was deliberate. The Advisory Committee
    noted that the “stringent time requirement” of seven days was
    shorter than the time for appealing the sentence so that if the
    court did in fact correct the sentence within the seven days, the
    defendant could still timely appeal the sentence if s/he so
    desired. Fed. R. Crim. P. 35 advisory committee’s note. The
    strict application of Rule 35 is reinforced by Rule 45, which
    provides that “[t]he court may not extend the time to take any
    action under Rule 35, except as stated in that rule.” Fed. R.
    Crim. P. 45(b)(2). Indeed, the Sentencing Reform Act provides
    that “[t]he court may not modify a term of imprisonment once it
    is imposed except that . . . the court may modify an imposed
    term of imprisonment to the extent otherwise expressly
    permitted . . . by Rule 35 of the Federal Rules of Criminal
    Procedure . . . .” 18 U.S.C. § 3582(c).
    In order to decide whether we have any latitude with
    respect to application of Rule 35’s seven-day time limit, we must
    consider whether the seven-day period is jurisdictional. In
    United States v. Addonizio, 
    442 U.S. 178
    (1979), the Supreme
    Court held that prisoners could not bring a collateral attack under
    28 U.S.C. § 2255 on the ground that a postsentencing change in
    the policies of the United States Parole Commission prolonged
    their actual imprisonment beyond that intended by the
    sentencing judge. The Court recognized that Rule 35 authorized
    the trial court to reduce a sentence but it noted that the Rule
    (referring to prior Rule 35(b), see infra p. 6-7) included a time
    limit of 120 days after sentence was imposed or after it was
    affirmed on appeal. 
    Id. at 189.
    The Court added, significantly
    for our purposes, “[t]he time period . . . is jurisdictional and may
    not be extended.” 
    Id. at 189
    & n.17 (citing Fed. R. Crim. P.
    45(b)).
    III.
    We turn to examine the history and purposes of Rule 35,
    as they are relevant to our determination whether Rule 35(a)’s
    seven-day time limit is jurisdictional. Rule 35 has been amended
    several times from 1979 until the present. In its original form,
    Rule 35 had three distinct components: (1) it delineated a
    5
    procedure to correct an “illegal” sentence;1 (2) it provided a
    remedy to correct an “illegally imposed” sentence;2 and (3) it
    authorized the court to reduce a lawfully imposed sentence, “if,
    on further reflection, the court believed that it had been unduly
    harsh.” 3 Charles Alan Wright, Nancy J. King & Susan R.
    Klein, Federal Practice and Procedure (Criminal) § 581, at 626
    (3d ed. 2004). Under that “original” Rule 35, an illegal sentence
    could be corrected at any time, whereas a sentence imposed in an
    illegal manner had to be corrected within 120 days. See 
    id. at 624
    n.1.3
    Specifically, “original” Rule 35 contained two sub-
    sections. Subsection (a) provided that a court could correct an
    “illegal sentence” at any time and could correct a “sentence
    imposed in an illegal manner” within the period of time provided
    in subsection (b), that is, 120 days. See 
    id. at 625
    n.4.
    Subsection (b) provided in principal part that either party could
    make a motion, or the court could act on its own, to reduce the
    sentence imposed, as long as it did so within 120 days of
    sentencing. See 
    id. at 625
    n.4.
    It was this “original” form of Rule 35 which the Supreme
    Court analyzed in Addonizio, referred to above. More
    specifically, the Court analyzed Rule 35(b), although it is
    important to realize that at the time Addonizio was decided,
    subsection (b) provided much broader relief than it does today
    1
    “Illegal sentences” included those that were “in excess of
    the statutory maximum or otherwise unauthorized by statute,
    sentences that did not conform to the oral pronouncement of
    sentence, or sentences that were ambiguous with respect to the time
    and manner of service.” 3 Charles Alan Wright, Nancy J. King &
    Susan R. Klein, Federal Practice and Procedure (Criminal) § 582,
    at 628-32 (3d ed. 2004).
    2
    An “illegally imposed sentence” was one in which a
    defendant could raise a claim of error in the sentencing process. 3
    Wright, King & Klein, supra, § 585, at 637.
    3
    The 120-day provision was established in 1966. Prior to
    that, a sentence had to be corrected within 60 days. See 3 Wright,
    King & 
    Klein, supra, at 624
    n.1.
    6
    because it did not require the government to make a motion to
    reduce the sentence. Thus, the analysis in Addonizio is still
    relevant to our inquiry because at the time it was decided,
    subsection (b) addressed more broadly the district court’s power
    to change a sentence after it was imposed. See 3 Wright, King
    & Klein, supra, § 581, at 626-27.
    Coinciding with the enactment of the Sentencing Reform
    Act and adoption of the United States Sentencing Guidelines,
    Rule 35 was rewritten, effective November 1, 1987. See 
    id. § 581,
    at 627. Subsection (a), which had provided that an illegal
    sentence could be corrected at any time and an illegally imposed
    sentenced could be corrected within 120 days of sentencing, was
    amended to provide that “‘[t]he court shall correct a sentence
    that is determined on appeal under 18 U.S.C. 3742 to have been
    imposed in violation of law . . . upon remand of the case to the
    court . . . .’” See United States v. Rico, 
    902 F.2d 1065
    , 1067 (2d
    Cir. 1990) (quoting Rule 35(a) as amended in 1987). Subsection
    (b) was also changed in 1987 to provide that a sentence could be
    reduced only upon a government motion made within one year
    of sentencing, or, under a 1991 amendment to Rule 35, later than
    one year after sentencing if certain requirements were met. See
    3 Wright, King & Klein, supra, § 585.1, at 639-46.
    For several years following the 1987 amendments, there
    was a period of confusion among courts regarding whether the
    time limitations and other restrictions that had been added to the
    Rule were jurisdictional, that is, whether those limitations now
    restricted courts from correcting illegal sentences at any time.4
    Although the Rule itself imposed limitations, some courts
    continued to hold that district courts could correct illegal
    sentences at any time, and thus did not consider those limitations
    to be jurisdictional. See 
    Rico, 902 F.2d at 1069
    (holding that
    “the district court has inherent power to correct a mistaken
    4
    The distinction between an “illegal” sentence and an
    “illegally imposed” sentence lost importance after the 1987
    amendments, as defendants lost the ability to seek correction of an
    illegally imposed sentence under Rule 35. See Wright, King &
    Klein, supra, § 585, at 638-39; see also 
    Rico, 902 F.2d at 1067
    .
    7
    sentence within the time fixed for filing an appeal, where the
    parties had agreed to a different sentence and the court otherwise
    intended to abide by the agreement”); United States v. Cook, 
    890 F.2d 672
    , 675 (4th Cir. 1989) (holding that a district court
    maintains power to correct an “acknowledged and obvious
    mistake”). See also 3 Wright, King & Klein, supra, § 585.2, at
    646.
    The Advisory Committee notes explain that a new
    provision, previously non-existent subsection (c), was added to
    Rule 35 in 1991 to address that problem.5 According to a note of
    the Advisory Committee, “Subdivision (c) [wa]s intended to
    adopt, in part, a suggestion from the Federal Courts Study
    Committee 1990 that Rule 35 be amended to recognize explicitly
    the ability of the sentencing court to correct a sentence imposed
    as a result of an obvious arithmetical, technical or other clear
    error, if the error is discovered shortly after the sentence is
    imposed.” Fed. R. Crim. P. 35 advisory committee’s note. The
    note states that the purpose of subsection (c) was to “codif[y] the
    result in [Rico and Cook]” but to provide “a more stringent time
    requirement.” Id.; see also 3 Wright, King & Klein, supra, §
    581, at 628 (explaining that subsection (c) was a “very narrow
    provision”). In other words, subsection (c) reinforced that a
    district court has authority to correct a sentence, but that
    authority is limited.
    The purposes of the Rule’s temporal limitation are
    particularly relevant to our discussion. Importantly, “[t]he
    Committee believed that the time for correcting such errors
    should be narrowed within the time for appealing the sentence to
    5
    Subsection (c) as added in 1991 is substantively the same
    text as that now contained in subsection (a), which is the focus of
    our discussion. In 2002, Rule 35 was amended again. Although
    the text contained in subsection (c) was not substantively changed,
    it was moved to subsection (a), when the previous subsection (a)
    was deleted. See Wright, King & Klein, supra, § 581, at 628.
    Thus, when we discuss the history of subsection (c) throughout our
    analysis, we are referring to the statutory text at issue in this
    appeal.
    8
    reduce the likelihood of jurisdictional questions in the event of
    an appeal and to provide the parties with an opportunity to
    address the court’s correction of the sentence, or lack thereof, in
    any appeal of the sentence.”6 Fed. R. Crim. P. 35 advisory
    committee’s note; see also 3 Wright, King & Klein, supra, §
    585.2, at 649 n.5 (explaining why, under the Rule, the district
    court must act within seven days). Indeed, the note states that, in
    drafting subsection (c), the Committee expressly contemplated
    that the district court “would enter an order correcting the
    sentence and that such order must be entered within the seven
    (7) day period so that the appellate process . . . may proceed
    without delay and without jurisdictional confusion.” Fed. R.
    Crim. P. 35 advisory committee’s note (emphasis added). The
    purpose of the seven-day time limit strongly suggests that the
    Committee intended the time limit to be jurisdictional, because
    the very purpose of choosing a period of time less than the time
    for filing an appeal was to avoid jurisdictional conflicts between
    the district and appellate courts. In addition, the note explains,
    “A shorter period of time would also reduce the likelihood of
    abuse of the rule by limiting its application to acknowledged and
    obvious errors in sentencing.” 
    Id. After the
    addition of subsection (c), Rule 35 provided
    only three ways that a district court could change a sentence
    after it had been imposed: (1) after appeal and remand
    (Subsection (a)); (2) after a motion by the government to reduce
    a sentence due to a defendant’s substantial assistance
    (Subsection (b)); and (3) to correct a clear error, but only within
    seven days of sentencing (Subsection (c)). Subsection (c) was
    the only subsection that gave the district court discretion, absent
    a government motion or an appeal and remand, to correct the
    sentence. Thus, “[t]he authority to correct a sentence under
    6
    Pursuant to Rule 4(b)(1) of the Federal Rule of Appellate
    Procedure, a defendant must file a notice of appeal in the district
    court within ten days of the entry of judgment or the government’s
    filing of a notice of appeal, whichever is later. Fed. R. App. P.
    4(b)(1)(A). When the government is entitled to appeal, it has thirty
    days from the later of the entry of judgment or the defendant’s
    filing of a notice of appeal. Fed. R. App. P. 4(b)(1)(B).
    9
    [that] subdivision [wa]s intended to be very narrow and to
    extend only to those cases in which an obvious error or mistake
    has occurred in the sentence . . . .” Fed. R. Crim. P. 35 advisory
    committee’s note. The Advisory Committee’s note explicitly
    cautions that subsection (c) was not intended to be used as a
    method for reopening issues already decided, or to address
    questions related to the district court’s discretion in applying the
    Sentencing Guidelines. Id.; see also 3 Wright, King & Klein,
    supra, § 582, at 632 (explaining that Rule 35 is “not a means of
    collateral attack”).
    The Advisory Committee note explains that the addition
    of subsection (c) to Rule 35 was not meant to revitalize former
    subsection (a) which had granted district courts broad discretion
    to correct an “illegal sentence,” but neither was it intended to
    prevent a defendant from seeking relief from the imposition of
    an “illegal sentence.” Rather, the drafters intended that, if a
    defendant wanted to seek relief from a “plainly illegal sentence”
    and the seven-day period provided for in Rule 35 had elapsed,
    the defendant would seek relief under 28 U.S.C. § 2255. Fed. R.
    Crim. P. 35 advisory committee’s note; see also 3 Wright, King
    & Klein, supra, § 583, at 634.
    In 2002, then-existing subsection (a), which provided that
    the district court could correct a sentence after an appeal and
    remand, was deleted because it was redundant in light of 18
    U.S.C. § 3742. See 3 Wright, King & Klein, supra, § 581, at 626
    n.9. Subsection (c) was then relocated to subsection (a), which
    is the version of the Rule at issue in our discussion.
    With this deeper understanding of the purpose and history
    of Rule 35 in mind, we turn now to examine the decisions of the
    Courts of Appeals interpreting Rule 35 following its
    amendments in both 1987, which significantly changed
    subsection (b), and in 1991, which added subsection (c) – that is
    – the text providing that a court may correct a sentence if it acts
    within seven days of sentencing. From 1991 until the present,
    ten other Courts of Appeals have held that Rule 35(a)’s seven-
    10
    day time limit is jurisdictional.7 See, e.g., United States v.
    Penna, 
    319 F.3d 509
    , 510-12 (9th Cir. 2003) (holding that a
    district court loses jurisdiction to act under Rule 35 after the
    seven-day time limitation expires); United States v. Austin, 
    217 F.3d 595
    , 597 (8th Cir. 2000) (deciding that a district court had
    no jurisdiction to alter sentence after the seven-day time limit
    had expired); United States v. Werber, 
    51 F.3d 342
    , 348-49 (2d
    Cir. 1995) (rejecting appellees’ argument that district court had
    “inherent authority” to correct sentence at any time, explaining
    that the 1991 amendments to Rule 35 imposed an absolute
    seven-day time limit); United States v. Fahm, 
    13 F.3d 447
    , 453-
    54 (1st Cir. 1994) (deciding that Rule 35(c)’s seven-day time
    limit is jurisdictional and holding that the district court did not
    have inherent authority to correct a sentence after the expiration
    of that period).
    The Court of Appeals for the Fourth Circuit’s decision in
    United States v. Shank, 
    395 F.3d 466
    (4th Cir. 2005), is
    instructive. In Shank, the defendant had filed a motion to correct
    his sentence under former Rule 35(c), now Rule 35(a), within
    seven days of sentencing. 
    Id. at 468.
    The district court failed to
    act on the motion within the seven days, but denied the motion
    several months later. Shank appealed, arguing that “if a
    defendant timely invokes Rule 35 (i.e., within seven days), the
    district court is vested with jurisdiction to dispose of that motion,
    regardless of how long it takes the court to do so.” 
    Id. (internal citations
    omitted). The Court of Appeals rejected that argument,
    holding that Rule 35(a) “divests a district court of jurisdiction to
    correct sentencing errors more than seven days after sentencing.”
    
    Id. In reaching
    that conclusion, the court relied heavily upon its
    analysis of the history and purposes of Rule 35, and, in
    particular, the Advisory Committee note explaining that the
    purpose of the seven-day rule was to allow the appellate process
    7
    For the sake of clarity, we note that with respect to those
    cases decided before 2002, when the relevant statutory text was
    moved from subsection (c) to subsection (a), the cases refer to the
    seven-day provision as being located in subsection (c) because that
    is where it was located at the time. The text itself is substantively
    the same.
    11
    to proceed without jurisdictional confusion. 
    Id. at 469.
    The
    court reasoned that because the time for filing an appeal expires
    after ten days following sentencing, the seven-day period for
    correcting a sentence “must lapse after seven days.” 
    Id. This court
    has also held that the time limitations
    proscribed by Rule 35 are jurisdictional, albeit as applied to a
    prior version of Rule 35(b) rather than the provision at issue
    here. In United States v. Friedland, 
    83 F.3d 1531
    , 1538 (3d Cir.
    1996), defendant Friedland made a motion for a reduction of
    sentence under Rule 35(b). Because Friedland committed his
    offense before the 1987 amendments took effect, the prior
    version of Rule 35(b), which allowed a defendant to make a
    motion for reduction of sentence within 120 days of sentencing,
    applied. 
    Id. Friedland made
    the motion, but he did not do so
    within the 120 days. We recognized, citing Addonizio, that the
    120-day limit is jurisdictional and could not be extended. 
    Id. Friedland’s motion,
    therefore, was untimely.
    Moreover, in United States v. Idone, 
    38 F.3d 693
    , 698 (3d
    Cir. 1994), we held, over appellant’s objection, that the 1987
    amendments to Rule 35(b) did not delete its jurisdictional
    requirement. We explained that the failure of a district court to
    act within the requisite time was jurisdictional. 
    Id. Thus, having
    examined the plain language of Rule 35(a)
    and its interplay with both Rule 45 and Rule 4 of the Federal
    Rules of Appellate Procedure, the history and purposes of Rule
    35, the conceptual underpinnings of Addonizio, and the various
    Court of Appeals decisions interpreting either former Rule 35(c)
    or current Rule 35(a), we conclude that each of those bases
    counsels in favor of holding that the seven-day time requirement
    of Rule 35(a) is jurisdictional.
    IV.
    The unanimity in strict enforcement of the seven-day time
    requirement in Rule 35(a) of an order correcting a sentence must
    be contrasted with the Supreme Court’s decision in Eberhart v
    United States, 
    546 U.S. 12
    (2005), which arose under Rule 33 of
    the Federal Rules of Criminal Procedure. Under Rule 33(a),
    12
    (a) Defendant’s Motion. Upon the defendant’s
    motion, the court may vacate any judgment and grant a
    new trial if the interest of justice so requires. If the case
    was tried without a jury, the court may take additional
    testimony and enter a new judgment.
    The time to file a motion for new trial is governed by Rule 33(b)
    which provides:
    (b) Time to File.
    (1) Newly Discovered Evidence. Any motion for a
    new trial grounded on newly discovered evidence must be
    filed within 3 years after the verdict or finding of guilty.
    If an appeal is pending, the court may not grant a motion
    for a new trial until the appellate court remands the case.
    (2) Other Grounds. Any motion for a new trial
    grounded on any reason other than newly discovered
    evidence must be filed within 7 days after the verdict or
    finding of guilty.
    In Eberhart, the Supreme Court analogized the time
    limitation of Rules 33(a) and 45(b)(2), the Rule governing
    motions for new trial, to the time limitations of Federal Rules of
    Bankruptcy Procedure 4004 and 9006 which it had held, in
    Kontrick v. Ryan, 
    540 U.S. 443
    , 456 (2004), are claims-
    processing rules that can be forfeited under certain
    circumstances but are not 
    jurisdictional. 546 U.S. at 15-16
    . The
    Court in Eberhart explained that because the particular time
    limitation of Rule 33 is a claims-processing rule meant to bring a
    definite end to judicial proceedings, that limitation, although
    inflexible, is not jurisdictional. 
    Id. at 19.
    Following Eberhart, the Supreme Court clarified the
    distinction between claims-processing rules and jurisdictional
    rules. In Bowles v. Russell, ___ U.S. ___, 
    127 S. Ct. 2360
    (2007), the Court held that if a time limitation is set forth in a
    statute, it is jurisdictional. “Jurisdictional treatment of statutory
    time limits makes good sense” because it gives proper weight to
    Congressional intent to decide what cases federal courts have
    jurisdiction to consider. 
    Id. at 2365.
    “Because only Congress
    may determine a lower federal court’s subject-matter
    13
    jurisdiction,” the critical inquiry in determining whether a
    particular timing rule is jurisdictional is whether it is set forth in
    a statute. 
    Id. at 2364
    (internal citations omitted).
    After the Eberhart decision, the Court of Appeals for the
    Seventh Circuit held that the time limitation of Rule 35 is
    jurisdictional, principally because 18 U.S.C. § 3582 limits the
    substantive authority of the district courts. See United States v.
    Smith, 
    438 F.3d 796
    , 799 (7th Cir. 2006). Because section 3582
    sets forth a statutory basis for limiting the district courts’
    jurisdiction, the Seventh Circuit concluded that the timing
    requirement of Rule 35 is jurisdictional. 
    Id. The court’s
    reasoning in Smith comports with the Supreme Court’s decision
    in Bowles. We agree that Rule 35’s time limitation derives from
    the limitation set forth by statute, 18 U.S.C. § 3582(c). Cf.
    
    Bowles, 127 S. Ct. at 2365
    (recognizing that the time limit in
    Supreme Court Rule 13.1 derives from 28 U.S.C. § 2101(c)).
    Therefore, we hold that the seven-day time requirement set forth
    in Rule 35(a) is jurisdictional. As a result, the District Court was
    without jurisdiction to enter its January 24, 2005 order denying
    Higgs’ motion for reduction of sentence.
    Higgs argues that remand is required in light of United
    States v. Davis, 
    407 F.3d 162
    (3d Cir. 2005) (en banc). Because
    Higgs did not directly appeal the entry of judgment, but instead
    appealed the order denying his motion under Rule 35(a), we will
    not remand for resentencing. The District Court’s judgment and
    sentence remain intact, notwithstanding our vacatur of the
    January 24 order.8
    For the reasons set forth, we will vacate the order dated
    January 24, 2005, and dismiss the appeal.
    8
    We note that our decision leaves open the question whether
    Higgs’ counsel’s decision to file a Rule 35 motion, rather than
    directly appealing Higgs’ sentence, gives rise to a valid ineffective
    assistance of counsel claim under 18 U.S.C. § 2255. We do not
    decide that issue, which is not before us.
    14