United States v. Sepasitiano Feao , 708 F. App'x 916 ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-10502
Plaintiff-Appellee, D.C. No.
4:14-cr-00533-JST-1
v.
SEPASITIANO FEAO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted December 6, 2017
San Francisco, California
Before: REINHARDT ** and SCHROEDER, Circuit Judges, and ELLIS,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Reinhardt was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Reinhardt
has read the briefs, reviewed the record, and listened to oral argument.
***
The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.
Defendant-Appellant Sepasitiano Feao (“Feao”) appeals from the district
court’s order denying his motion to reconsider his sentence. Our appellate
jurisdiction rests on 28 U.S.C. § 1291, and we AFFIRM.
Feao’s plea agreement contained a broad waiver of appeal rights, and even if
this appeal were not waived, the district court lacked jurisdiction to modify his
sentence. A district court may correct a sentence resulting from “arithmetical,
technical, or other clear error,” but only “[w]ithin 14 days after sentencing.” FED.
R. CRIM. P. 35(a). Rule 35 defines “sentencing” as “the oral announcement of the
sentence.” FED. R. CRIM. P. 35(c). A sentence is final when there’s a “formal
break in the proceedings from which to logically and reasonably conclude that
sentencing had finished.” United States v. Ochoa, 809 F.3d 453, 458–59 (9th Cir.
2015) (citation omitted). Rule 35(a)’s 14-day window is jurisdictional. See United
States v. Aguilar-Reyes, 653 F.3d 1053, 1056 (9th Cir. 2011).
Because “a recommendation to the Bureau of Prisons is not part of a
sentence,” Feao’s sentence was final after his first sentencing hearing on July 22,
2016. United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011). The district
court therefore correctly concluded it lacked jurisdiction to entertain Feao’s
November 3, 2016 motion to modify his sentence.
AFFIRMED.
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