United States v. Morillo, 1st Cir. (1993)
United States v. Morillo, 1st Cir. (1993)
United States v. Morillo, 1st Cir. (1993)
United
States Attorney,
with
_________________
whom Edwin J. Gale, United States Attorney, was on brief, for the
_____________
United States.
_________________________
November 8, 1993
_________________________
time, to chart
Fed. R.
P. 35(c) (the
We
circumstances,
text of which is
conclude
that,
post-judgment
under
set forth in
certain
motions brought
the
circumscribed
under
the latter
rule can operate to extend the appeal period limned by the former
rule, and
effect.
instant case
qualifies for
this elongating
Morillo is
hollow
that the
victory,
however,
for
find
Morillo's
heralds a
substantive
sketch suffices
perspective.2
In
to put
1992, a federal
this appeal
into
____________________
1The rule provides:
The court, acting within 7 days after the
imposition
of sentence,
may correct
a
sentence that was imposed as a result of
arithmetical, technical,
or other
clear
error.
Fed. R. Crim. P. 35(c).
since December, 1991.
2The
guidelines
1041-42
that
2
the
See
___
(1st
version,
only
federal sentencing
United
States v.
_______________
Cir. 1990).
All
unless
otherwise
21 U.S.C.
The
841(a)(1) (1988).
district court
November
30,
set
the case
appellant
he was ready to
guilt
the
in
December.
appointment
appellant changed
his plea
appellant's longstanding
of
an
the government
his
motion and
On
on all counts.
granted
for
for trial
moved
independent toxicologist to
planned to offer
He entered
ordered the
drugs
a sentencing hearing
district court
held on
March 18,
1993, the
of conviction warranted
U.S.S.G.
(Drug
2D1.1(c)(13)
Quantity
(BOL) of 18.
Table).3
The
See
___
judge
role in the
the
BOL
levels
of
id.
___
by two
3E1.1(a).
category
When
(III),
sentencing range
for acceptance
combined
the various
(GSR)
with
responsibility, see
___
appellant's
adjustments
of 33-41
months.
criminal history
produced a
guideline
The court
sentenced
_____
drug weight and, relatedly,
the appropriateness
On April
post-judgment motion
an alleged miscalculation in
notice of
margin order.
a judgment of conviction.
See
___
Fed. R. App.
of a judgment is
of a certain
However, in
closely followed by
the
relaxed.
Crim. P.
33, or timely
motions in
arrest of judgment,
Fed. R.
Crim. P. 34, stall the running of the appeal period and permit an
appeal to
be taken
stand, "within
of conviction,
entry of an order
should it
denying the
motions
apart
from
those
expressly
effect.
The
rehearing
or reconsideration.
S. Ct.
4,
paradigmatic
6-7 (1991)
example
See
___
(per curiam)
is
same suspensory
timely
motion
for
government's
timely motion
for
with respect to
reconsideration restarted
the appeal
6,
8 (1976)
(per
curiam)
practice
in civil
and criminal
(noting that
cases alike
period
Dieter, 429
______
"the
consistent
has been
to treat
purposes of appeal
for as long as
Healy, 376
_____
United States v.
______________
F.2d
denied, 112
______
Carr, 932
____
S. Ct.
the petition is
67, 71-72
(1st Cir.),
(1964);
cert.
_____
Gallardo, 915
________
U.S. 1038
(1991).
B.
B.
__
Framing The Issue
Framing The Issue
_________________
The pivotal question here is whether
judgment motion is of
the motion did
appellant's postIf
the filing of
____________________
of
appeal,
judgment, is
convince us
filed
a nullity.
that
extended
the time
than 10
To avoid
bringing the
more
days
this result,
March
23 motion
after
entry
appellant must
suspended
within which
put in
an
the
judgment
its simplest
appeal from
of
aspect,
the underlying
Characterization.
Characterization.
________________
Our first
order of business is
March 23 motion.
The motion
did not invoke, or even refer to, any particular procedural rule.
When
a motion
is silent as
to the
location of
its procedural
it.
See,
___
F.2d 1142,
1144 n.2
F.2d
16, 19 n.3
F.2d
233, 234
(9th
Feinstein v.
_________
United States
_____________
Cir. 1989);
see
___
v. Lefler, 880
______
also Perez-Perez
____ ___________
that
court
should
uncaptioned post-judgment
examine
Moses, 951
_____
v.
the
function
of
an
appellant styled
sentence."
Elevating
his motion
as
a motion
"to
we conclude
supra note 1.
_____
district
P. 35(c), quoted
court made a
discerned drug
claimed bevue as
numerical mistake
quantities.
Whether
in its
or not one
aggregation of
classifies this
alleges, at a
bare
minimum,
a strain of
"clear error."
P.
35(c)
(stating that
advisory
the rule
This is the
very sort of
designed to address.
committee's
enables a court
note
See Fed.
___
(1991
see also
___ ____
United States v.
_____________
Corey, 999
_____
amendment)
to rectify
"an obvious
the error or
is imposed");
"inherent authority .
. . to correct sentencing
R.
(10th Cir.
district court's
errors").
And,
Effect.
Effect.
______
under Fed. R.
focus next
on whether
extends the
time for
as a motion
a motion brought
appealing from
We
pursuant to
Rule 35(c)
the underlying
judgment.5
____________________
5To be sure, the text of Rule 35(c) does not mention motions
and
contemplates that the
district court, within certain
specified constraints, may act sua sponte to correct sentencing
___ ______
errors. But we do not read the rule as prohibiting either the
government or the defendant from calling the need for corrective
action to the sentencing court's attention by means of a timely
filed post-judgment motion.
We believe that such motions are
permissible and note that other courts have read the rule as
authorizing them.
See, e.g., Corey, 999 F.2d at 494-96; United
___ ____ _____
______
States v. Turner, 998 F.2d 534, 536 (7th Cir. 1993).
______
______
7
the
original
precedents).
notwithstanding
provisions
appeal
period.
This tenet
that, by
for rehearing
and
large,
See supra
___ _____
applies
there
proceedings in
in
explained
the
4-5
criminal cases
are
"no
criminal
explicit
cases."
pp.
16
3950, at
rationale
for
giving
such
motions
suspensory
effect:
[Depriving parties to a criminal case] of the
opportunity to petition a lower court for the
correction
of
errors
might,
in
some
circumstances, actually prolong the process
of litigation
since plenary consideration
of a question of law [on appeal] ordinarily
consumes more time than disposition of a
petition for rehearing
and could, in some
cases, impose an added and unnecessary burden
of adjudication upon [the appellate court].
Healy,
_____
376 U.S. at
having survived
80.
The
the massive
Healy doctrine is
_____
changes wrought
by the
Sentencing
999 F.2d
F.2d 1449,
1470-71 (5th Cir. 1992), cert. denied, 113 S. Ct. 2354 (1993).
_____ ______
It stands to reason that,
clear error,
motion which,
portion
of
if a sentence is infected by
seeks to shrink
and,
it
at least a
the incarcerative
thus, carries
the
potential to
Forcing a party
to press
ahead with
an appeal
while such a
motion is
pending
to a
Crim. P.
criminal case
35(c), asking
of the
3.
3.
court
Fed. R.
to reconsider
an
defendant's substantive
the sentencing
files a
rights, then
the
Our
speleology
into
this
__________
jurisdictional cave also uncovers a temporal dimension.
been careful
to note,
and believe it
is prudent
We have
to emphasize,
at 8
376
U.S.
at
77,
differently in different
with
motion for
inherent power
80
(same).
contexts.
rehearing
to correct an
Timeliness
In Carr,
____
addressed to
is
measured
we were confronted
a
district court's
erroneous sentence.7
We accorded
____________________
in Carr antedated
____
See Carr, 932 F.2d at 71 n.5.
___ ____
9
the adoption of
Rule 35(c).
880
defendant's
running
F.2d at
of
235
the
Hence,
appeal period.
(explaining
that,
the motion
Id.;
___
"for
accord
______
criminal
within
is overgenerous.
concerned lest
criminal
states
they pave
The drafters
further
justice system.
imposition of sentence."
Fed.
a limitation, see
___
committee's
note
were
delay within
concern, the
R. Crim. P. 35(c).
Fed. R.
(1991 amendment)
this
the rule
the
rule
constitutes
if no motion
avenues of
To assuage
of
The interval
Crim. P.
(discussing
35(c) advisory
the new
rule's
is absolute:
be
not decided within the seven-day period, the judge's power to act
under
denied as
of that date.
essence of the
limitation:
is deemed to be
captured the
on
judge's power
the date
the district
to alter
the sentence
expired."
1993).
We derive two valuable lessons
10
rule:
and
seven
judgment nonfinal
days following
appeal period
is
only if
the imposition
restarted when
it is
brought within
of sentence;
the district
and
(2) the
court decides
Application.
Application.
___________
pronounced sentence
day.8
In
on March
Appellant filed
his
this
18 and
Rule
case, the
entered judgment
35(c)
act immediately
pendency
of the
upon
motion
the
motion
rendered
district court
the
motion on
the next
March
23,
consequently,
judgment
nonfinal
the
only
notice of appeal
room to spare.
on April 1,
1993, he met
By filing
____________________
III.
III.
____
The Merits
The Merits
__________
A.
A.
affect the
but those
instance, we
__
Drug Quantity
Drug Quantity
_____________
F.2d
601, 604
(1st
Cir.
1990).
Because
drug
quantity
often have
phenomenon grows
a significant
more pronounced as
leveraging
effect.
heroin involved in
20 grams.
The
The
to the
table.
This
the offenses of
defense contends
heroin weighed
19.75 grams.
increment of
two offense
(14)
(Drug
involving
levels.
Quantity Table)
at
least 20
See U.S.S.G.
___
(setting
but less
than
BOL
of 18
40 grams
2D1.1(c)(13),
for
of
offenses
heroin and
____________________
setting
BOL of
16 for offenses
involving at least
10 but less
be
facts relating to
succinctly
summarized.
Each
transaction
culminated
was
drug quantity
charged
with
the
exchange
of
the "browns"
number of
basis, the
packs contained
in the
only
consignment.
by the
On this
average weight
of
these
three assessments.
Appellant contested
Pursuant to
the
studied
the
heroin involved
formula, and
grams.
in
the third
estimated that it
Of necessity, however,
transaction,
using its
own
and 16.21
DEA,
used
in
arriving
at
the
DEA's
drug
quantity
that the
augmented by the
at least
found
12 grams.
from the
respectively) and
(0.41 grams), brought the drug quantity over 20 grams and the BOL
to 18.11
The
by
a fair preponderance of
the evidence.
1990).
mistake of
_____
clearly erroneous.
Argencourt, 996 F.2d 1300, 1307 (1st Cir. 1993); United States v.
__________
_____________
McCarthy, 961 F.2d 972, 978 (1st Cir. 1992); Bradley, 917 F.2d at
________
_______
605.
In other
appellant
must
serious mistake" in
that
the
district
on appeal, an
court made
Sklar,
_____
"a
920 F.2d at
111.
We discern
impractical
to
no error
obtain
here.
an exact
United States v.
_____________
drug
When
quantity
suffice.
Hilton, 894
______
it is
impossible or
for sentencing
F.2d 485,
488 (1st
Cir.
____________________
1990);
1989).
United States
_____________
The
v. Gerante,
_______
court
below
conservative approach to
the
891 F.2d
achieved
this
364, 369
(1st Cir.
benchmark, taking
ranging from a
Given
low of 10.39
toward the low end of the continuum represented the most probable
weight
cannot be
faulted.
court's flexibility
where testimony of
values).
Where,
Cf., e.g.,
___ ____
United States
_____________
(9th Cir.
in determining
one inference, a
1988) (stressing
value of
property
wide range of
v. 22.80
_____
See
___
among plausible
at 606; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
_____________
____
B.
B.
__
Acceptance of Responsibility
Acceptance of Responsibility
____________________________
The district
responsibility
by
two
refused
that appellant
had accepted
levels on
to grant an
3E1.1(b).12
court found
that
account,
see U.S.S.G.
___
3E1.1(a),
but
under U.S.S.G.
____________________
12The applicable guideline reads:
(a) If the defendant clearly demonstrates
acceptance of responsibility for his offense,
decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease
under subsection (a),
the offense level
determined
prior
to the
operation
of
15
decreases in
for
the offense
acceptance of responsibility.
Ocasio-Rivera,
_____________
sentencing
991
court has
defendant
of
level, including
F.2d
1,
what is
See, e.g.,
___ ____
(1st
ruled against
downward adjustments
Cir.
him on
We
3E1.1(a), that
United States v.
_____________
1993).
Once
such an
the
issue, the
defendant
responsibility'
is
a fact-dominated
issue,
and
the
the offense
United
______
States
______
v. Royer,
_____
omitted).
The
895
28, 29
(1st
Cir. 1990)
F.2d
United States
_____________
guides appellate
v. Donovan,
_______
996
(citation
F.2d 1343,
3E1.1(b).
1346 (1st
Cir.
____________________
subsection (a) is level 16 or greater,
the defendant has assisted authorities in
investigation or prosecution
of his
misconduct by taking one or more of
following steps:
and
the
own
the
(1)
timely
providing
complete
information to the government concerning
his own involvement in the offense; or
(2) timely notifying authorities of his
intention to enter a plea of guilty,
thereby permitting the government to
avoid preparing for trial and permitting
the court to allocate its resources
efficiently,
decrease the offense level by 1 additional
level.
U.S.S.G.
3E1.1.
16
We
determination
find
no
clear
that appellant
error
in
failed to
3E1.1(b)(2).
the
district
qualify
Appellant was
for the
court's
added
arraigned on
He pleaded
not guilty.
of an independent
In our view,
notification of an intention
provision
court
conserve
preparation.
resources
by
That
unnecessary
trial
later,
to
Several weeks
A conditional
trial and
the
did not
November 30
err in
refusing to
treat the
offer as
need be said.
Appellant did
the court
withholds a
trial
has
set for
jury selection.
3E1.1(b)(2).
awarding
had
Therefore,
appellant
to
unguent
17
defendant who
stands poised on
the soothing
two-level,
rather
than
the brink of
of section
appropriately in
a
three-level,
3B1.1(c)
managerial
(providing a two-level
responsibilities
in
See
___
certain
criminal
endeavors).
conviction involved
the defendant
at least
exercised control
States
______
v. Akitoye,
_______
States
______
v. Fuller,
______
923 F.2d
897 F.2d
two
participants,13 and
over one of
221, 227
1217, 1220
them.
(1st Cir.
See United
___ ______
1991); United
______
(1st Cir.
that
1990).
The
an upward role-
this case,
it is
undisputed
that at
least three
appellant, his
On at
and
merchandise
responded
to
appellant's
heroin apparently
presentence
Severino
investigation
worked
for
apartment
with
the
report
(PSI
Report)
under
the
direction
and
via beeper,
The
asserted
of
that
Morillo.
____________________
13The defendant himself may
overall number of participants.
he did
not object
to this
was only a
middleman in the
determination.
At the
behest,
agent
over
contradict
him.
counsel
and that
Yet,
the assertion
surprisingly,
then, the
claimed that
Morillo
exercised
appellant
contained
Severino
offered
in
district court
the
did
so as
no independent
no
evidence
PSI Report.
accepted the
to
Not
probation
ordinarily are
v. Zuleta-Alvarez,
______________
cert.
_____
denied, 111
______
922 F.2d
S. Ct.
2039 (1991);
See United
___ ______
Cir. 1990),
at 508;
United States v. Rivera Ramos, 856 F.2d 420, 424 (1st Cir. 1988),
_____________
____________
cert.
_____
denied, 493
______
district
1991)
exception to
accepts
the
(1st
Cir.
sufficiently dependable to
1287
969
is not,
1283,
(1989); see
___
Tardiff,
_______
is, or
F.2d
U.S. 837
be used
(ruling that
in imposing
(similar).
that rule
1992)
We
lack
adequate
probation
department's
reason to
A
make
an
defendant who
configuration
of
the
in the
could
rely on
the computation),
cert. denied,
_____ ______
113 S.
Ct. 507
the sentencing
when appellant
interpretations
of
couched
facts
his
rather
objections
than
as
1992)
on the
exclusively
challenges
to
PSI
as
the
facts
contained
in the
PSI
Report
without
evidence); Ruiz,
____
905
F.2d
at
508
court is free
further
but offers no
(holding
that
no further.
role-in-the-offense
deferential
Mindful
determinations
is
under
cannot
court,
fault
evidence, for
the
PSI Report
the district
in the
absence
we
of contrary
able to page
of
control or
organizational authority"
Affirmed.
Affirmed.
________
on demand, exercised
"some
over Severino.
21