           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    United States v. Monus                       No. 02-4102
        ELECTRONIC CITATION: 2004 FED App. 0031P (6th Cir.)
                    File Name: 04a0031p.06                              ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
                                                                        David L. Engler, Boardman, Ohio, Martin E. Yavorcik,
                                                                        Poland, Ohio, for Appellant. John D. Sammon, ASSISTANT
UNITED STATES COURT OF APPEALS                                          UNITED STATES ATTORNEY, Cleveland, Ohio, for
                                                                        Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                       _________________

 UNITED STATES OF AMERICA , X                                                                   OPINION
             Plaintiff-Appellee, -                                                          _________________
                                   -
                                   -  No. 02-4102                          SILER, Circuit Judge. After Michael I. Monus was
            v.                     -                                    convicted of various financial crimes, this court upheld his
                                    >                                   conviction but remanded for resentencing. Subsequently,
                                   ,                                    Monus moved for: (1) a new trial on the basis of newly-
 MICHAEL I. MONUS,                 -
         Defendant-Appellant. -                                         discovered evidence, (2) a sentence reduction pursuant to 18
                                                                        U.S.C. § 3582(c), and (3) a writ of coram nobis. The district
                                  N                                     court determined that the motion for a new trial was untimely,
      Appeal from the United States District Court                      that the motion for sentence reduction was without merit
    for the Northern District of Ohio at Youngstown.                    because the new sentencing guideline at issue was substantive
   No. 93-00034—Peter C. Economus, District Judge.                      and not clarifying (and thus not retroactive), and that the
                                                                        coram nobis motion was inappropriate because Monus is still
                   Argued: December 4, 2003                             is federal custody. He appeals from the district court’s rulings
                                                                        on these three motions. We affirm.
             Decided and Filed: January 26, 2004
                                                                                              BACKGROUND
         Before: SILER and GILMAN, Circuit Judges;
                  BUNNING, District Judge.*                                In 1995 Monus was convicted on all counts of a 109-count
                                                                        indictment that charged him with an assortment of financial
                      _________________                                 crimes, including bank, wire, and mail fraud. On appeal, this
                                                                        court affirmed his conviction but vacated his sentence and
                           COUNSEL                                      remanded for resentencing for the district court to explain
                                                                        how it calculated the amount of loss and to respond to
ARGUED: David L. Engler, Boardman, Ohio, for Appellant.                 Monus’s objections to the Presentence Report. United States
John D. Sammon, ASSISTANT UNITED STATES                                 v. Monus, 128 F.3d 376 (6th Cir. 1997). This court rendered
                                                                        its decision on October 21,1997, and the mandate affirming
                                                                        Monus’s conviction issued on October 24, 1997.
    *
     The Honorable David L. Bunning, United States District Judge for
the Eastern District of Kentucky, sitting by designation.

                                 1
No. 02-4102                      United States v. Monus       3    4       United States v. Monus                              No. 02-4102

   On remand, the parties struck a deal. In consideration for      guideline revision was substantive and not clarifying is also
stipulating to a lower loss figure ($5-10 million, as opposed      reviewed de novo. United States v. Hicks, 4 F.3d 1358, 1360
to the $80 million figure on which the previous sentence was       (6th Cir. 1993). Likewise, “[a] district court’s determination
based) that had the effect of reducing Monus’s net “loss”          of legal issues in coram nobis proceedings is reviewed de
enhancement four levels (from 18 to 14), Monus agreed to           novo.” United States v. Johnson, 237 F.3d 751, 754 (6th Cir.
waive all rights to appeal, including all rights under 28 U.S.C.   2001).
§ 2255. The order resentencing Monus in accordance with
these terms was entered on March 1, 1999.                                                      DISCUSSION

   On March 3, 2000, Monus filed two motions: a motion to                                 Motion for a New Trial
correct a clerical error and a motion for a reduction of
sentence under Rule 35(b). The district court granted the             In considering the timeliness of Monus’s motion for a new
motion to correct the clerical error but denied the Rule 35(b)     trial, the following dates are relevant: (1) May 25, 1995, the
motion. Monus again appealed. While the case was before            date on which the jury rendered its guilty verdict;
this court on Monus’s appeal of the district court’s denial of     (2) October 24, 1997, the date on which the mandate issued
his Rule 35(b) motion, however, on March 12, 2001, Monus           from this court affirming Monus’s conviction; (3) March 1,
filed a motion for a new trial based on newly-discovered           1999, the date on which the amended judgment was entered
evidence. The district court stayed consideration of the           following Monus’s resentencing; and (4) March 12, 2001, the
motion pending a ruling by this court on Monus’s appeal of         date on which Monus filed his motion for a new trial.
his Rule 35(b) motion.
                                                                     As to this issue, a preliminary question arises: which
  This court affirmed the district court’s denial of Monus’s       version of Rule 33 should apply, the pre-1998 version, which
Rule 35(b) motion on April 12, 2002. Monus then filed the          requires a motion for a new trial based on newly discovered
other two motions that are the subject of this appeal: the         evidence to be made “within two years after final judgment,”
motion for a sentence reduction pursuant to 18 U.S.C.              or the post-1998 version, which requires that the motion be
§ 3582(c) and the motion for a writ of coram nobis. The            made “within 3 years after the verdict or finding of guilty”?1
district court considered the three pending motions together       (Emphasis added). If the post-1998 version applies, even
and denied them all. Monus appealed.                               Monus concedes that his motion was untimely.

                STANDARD OF REVIEW                                   “At the time the amendments to Rule 33 were promulgated,
                                                                   the Supreme Court specified that the amendments would
  “Ordinarily, [an appellate court] reviews the denial of a        apply to all pending criminal cases ‘insofar as just and
motion for new trial on the basis of newly discovered              practicable.’” United States v. Ristovski, 312 F.3d 206, 212
evidence for abuse of discretion. [This case,] however,
presents [a] question[] of law . . . . Accordingly, [the court]
conducts a de novo review of the district court’s conclusion[]         1
                                                                         The Rule was further amended effective December 1, 2002. The
of law” that the motion was not timely filed. United States v.     Rule did not change in substance, however, and the same “3 years after
Pelullo, 14 F.3d 881, 886 (3d Cir. 1999) (citation omitted).       the verdict or finding of guilty” time-limitation still applies. The relevant
The district court’s determination that the relevant sentencing    language in the post-2002 Rule 3 3 appears in subsection (b)(1 ). (The pre-
                                                                   200 2 rule w as not divided into su bsections.).
No. 02-4102                      United States v. Monus       5    6       United States v. Monus                             No. 02-4102

(6th Cir. 2002) (citing Supreme Court Order 98-17, April 24,       Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)
1998). Though we have never addressed this question
directly, this court has strongly suggested that a case such as       Monus’s motion for sentence reduction under 18 U.S.C.
Monus’s - a situation where “if amended Rule 33 were               § 3582(c)2 relies on the November 2001 amendments to the
applied . . . , [the defendant’s] three-year period for filing a   guidelines, which included an overhaul of the financial crimes
motion for new trial . . . would have expired before the           guidelines. In 1995, when Monus was sentenced, he received
amendments to Rule 33 even went into effect” - would be one        a four-level enhancement because his offense “affected a
where applying the amended rule would be unjust and                financial institution and [he] derived more than $1,000,000 in
impracticable. Id. We therefore decline to apply the amended       gross receipts from the offense.” USSG § 2B1.1(b)(6)(B)
rule.                                                              (1995). This language was altered as part of the November
                                                                   2001 amendments, however. The post-2001 language, found
   Even under the old Rule 33, however, the overwhelming           in § 2B1.1(b)(12)(A), provides that, “[i]f the defendant
weight of authority suggests that Monus’s motion was               derived more than $1,000,000 in gross receipts from one or
untimely still. This is because those circuits that have           more financial institutions as a result of the offense, increase
construed “final judgment” in this context - the Sixth not yet     by 2 levels.” USSG § 2B1.1(b)(12)(A) (2002).3
among them - have held that when a defendant’s conviction
is affirmed but sentence vacated, the two-year time limit runs        While Monus concedes that the 2001 amendments “as a
from the date of the affirmance of the conviction rather than      whole” are substantive in nature, he advances what he calls a
from the date of resentencing. See, e.g., United States v.         “specific argument” that the 2001 amendment clarified what
White, 557 F.2d 1249 (8th Cir. 1977); Howell v. United             it means to “affect” a financial institution such that the district
States, 172 F.2d 213, 215-16 (4th Cir. 1949); see also United      court erred in denying retroactive application. Of course,
States v. Erwin, 277 F.3d 727, 733 (5th Cir. 2001) (dating         clarifications of the guidelines have retroactive application
“final judgment” from time of void judgment); United States        while substantive changes do not. United States v. Williams,
v. Lussier, 219 F.3d 217, 219-20 (2d Cir. 2000) (same). Thus,      940 F.2d 176 (6th Cir. 1991). He places particular reliance on
construing “final judgment” this way, the two-year time
period for Monus would have begun to run on October 24,
1997, the date on which this court issued its mandate                  2
                                                                            [I]n the case of a defendant who has been sentenc ed to
affirming his conviction, and far more than two years prior to              a term of imprisonment based on a sentencing range
Monus’s March 12, 2001 motion for new trial.                                that has subsequently been lowered by the Sentencing
                                                                            Comm ission . . . , upon motion of the defendant or the
   Finally, Monus argues that because the new evidence at                   Director of the Bureau of Prisons, or on its own
                                                                            motion, the court may reduce the term of
issue here is alleged to be Brady evidence, the time-limitation             imprisonm ent, after considering the factors set forth in
for filing his motion should be relaxed. See generally Brady                section 3553(a).
v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the             18 U .S.C. § 358 2(c)(2).
suppression by the prosecution of evidence favorable to an
                                                                       3
accused upon request violates due process”). This line of                 After the 1995 sentencing of Monus but before the 2001
argument was not advanced below, however, and thus this            amend ments, the “affect[ing] a financial institution” section was moved
court need not consider it now. See Saylor v. United States,       to § 2F1.1(b)(8)(B). (The language stayed the same.). The 2001
                                                                   amendm ents eliminated § 2F1.1(b)(8)(B) and moved the revised section
315 F.3d 664, 669 (6th Cir. 2003).                                 to its present location, § 2B 1.1(b)(1 2)(A ).
No. 02-4102                      United States v. Monus          7   8       United States v. Monus                                 No. 02-4102

the explanatory note to the 2001 amendment, which in part                          Motion for Writ of Error Coram Nobis
provides that
                                                                       “A prisoner in custody is barred from seeking a writ of
  [t]he enhancement also was modified to address issues              error coram nobis.” United States v. Johnson, 237 F.3d 751,
  about what it means to “affect” a financial institution and        755 (6th Cir. 2001). This is the case even if, as here, § 2255
  how to apply the enhancement to a case in which there              relief is no longer available. Id. Because Monus remains in
  are more than one financial institution involved.                  custody, he is barred from seeking the writ.4
  Accordingly, the revised provision focuses on whether
  the defendants derived more than $1,000,000 in gross                   AFFIRMED.
  receipts from one or more financial institutions as a result
  of the offense.
USSG App. C, Amendment 617, at 179.
   Given the specificity of the question presented, it is no
surprise that this court has not yet had occasion to pass on this
issue. However, the Seventh Circuit did in United States v.
Hartz, 296 F.3d 595 (7th Cir. 2002). It squarely rejected the
very argument advanced by Monus in the instant appeal. It
looked to three factors in determining if USSG
§ 2B1.1(b)(12)(A) is properly considered a clarification or a
substantive change: “(1) how the Sentencing Commission
characterized the amendment; (2) whether the amendment
changes the language of the guideline itself or changes only
the commentary for the guideline; and (3) whether the
amendment resolves an ambiguity in the original wording of
the guideline.” Id. at 599 (citations omitted). Noting the
absence of any indication that the Commission intended the
amendment to be clarifying, the fact that the amendment
changed the plain language of the guideline itself, and the              4
                                                                           Mo nus styled his mo tion as an “Application for Relief from
unambiguity of the original version, it found the amendment          Judgment or M otion for Sentence Reduction as if Under R ule 35 (b) or in
substantive. Id.                                                     the Nature of a W rit of Coram Nob is.” The district court did not address
                                                                     the Rule 3 5(b) part o f this motio n, in all likelihoo d because it had already
  The opinion in Hartz is well-reasoned and persuasive. We           ruled on the issue in an order dated March 30, 2000. In any event, such
therefore adopt its reasoning.                                       a motion is wholly without merit because, as the district court explained,
                                                                     the plain language of the rule makes clear that only the government can
                                                                     bring a Rule 35 (b) “substantial assistance” m otion. The government’s
                                                                     decision is not to be questioned unless the defendant can make a
                                                                     substantial threshold showing of an unconstitutional motive for refusing
                                                                     to make the mo tion, see United States v. Bagno li, 7 F.3d 90, 92 (6th Cir.
                                                                     199 3), and no such showing was made here.
