          United States Court of Appeals
                      For the First Circuit


No. 13-1243

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

         HECTOR MANUEL GONZALEZ-RODRIGUEZ, a/k/a Manolo,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Aida M. Delgado-Colon, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
               Stahl and Kayatta, Circuit Judges.



     Hector E. Guzman, Jr., Hector L. Ramos-Vega, Thomas
Trebilcock-Horan, Eric Alexander Vos, and Vivianne Marrero on brief
for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Juan Carlos
Reyes-Ramos, Assistant United States Attorney, on brief for
appellee.



                         January 23, 2015
          LYNCH, Chief Judge.    This case is a cautionary tale for

criminal defense counsel as to the need to observe the time limits

for taking appeals set forth in the Federal Rules of Appellate

Procedure and the restrictions on reconsideration of sentences set

forth in the Federal Rules of Criminal Procedure.        Two basic

lessons emerge from our consideration of the interplay between the

two sets of rules. First, self-styled "motions for reconsideration

of sentence," unmoored in the rules, do not extend the time for an

appeal.   The era when this court accepted such an approach in

United States v. Morillo, 8 F.3d 864 (1st Cir. 1993), ended in 2002

with the amendments to the Federal Rules of Appellate Procedure,

which specifically rejected Morillo.    See Fed. R. App. P. 4(b)(5)

advisory committee's note (2002 Amendments). Second, Congressional

enactments have deprived the district courts of their common-law

authority to modify sentences at a defendant's behest unless they

have before them a motion properly brought under Fed. R. Crim. P.

35(a) and act on it within 14 days of the original sentence.   See

18 U.S.C. § 3582(c).

          Neither lesson was heeded here.    Defendant's failure to

file a timely notice of appeal from his original sentence dooms his

appeal.

                                  I.

          On   April    30,     2002,   defendant   Hector   Manuel

Gonzalez-Rodriguez pled guilty to aggravated felonious sexual


                                 -2-
assault in state court in New Hampshire.               As a result of this

conviction, he was required under the Sex Offender Registration and

Notification Act (SORNA), Pub. L. No. 109-248, Title I, 120 Stat.

587 (2006) (codified at 42 U.S.C. §§ 16901-16962), to register as

a sex offender. Failure to register pursuant to SORNA is a federal

crime.      See 18 U.S.C. § 2250(a).

              Gonzalez-Rodriguez engaged in a number of other criminal

offenses in New Hampshire which led to convictions after his 2002

guilty plea, and he had active arrest warrants outstanding in 2010.

In December 2010, defendant moved from New Hampshire to Puerto

Rico.       He   did   not   notify   Puerto   Rican   authorities    of   his

establishing residence there, as required under SORNA.               On April

26, 2011, he was charged in a one-count indictment alleging that he

had failed to register in Puerto Rico as a sex offender in

violation of 18 U.S.C. § 2250(a).           Gonzalez-Rodriguez pled guilty

to that charge on August 1, 2011, pursuant to a plea agreement.1

              The district court held defendant's sentencing hearing on

February 24, 2012.           After hearing arguments from counsel, the

district court orally sentenced Gonzalez-Rodriguez to 36 months

imprisonment and 15 years of supervised release. The court imposed

several special conditions on the term of supervised release,


        1
          The   plea   agreement   contained   a   waiver-of-appeal
provision, but both parties agree that it is unenforceable because
the district court did not sentence Gonzalez-Rodriguez according to
the plea agreement's sentencing recommendation of 30 months
imprisonment.

                                      -3-
including conditions which require Gonzalez-Rodriguez to avoid

contact with minors.2          After completing its recitation of the

conditions    of   supervised    release,    the   district   court   advised

Gonzalez-Rodriguez that he had 14 days from the entry of judgment

to file a notice of appeal.

          Defense counsel kept arguing over the terms of the

sentence, despite the fact that the court had already orally

imposed the sentence.     She asserted that the conditions imposed by

the   court   were    unduly    onerous     because   Gonzalez-Rodriguez's

conviction was for failure to register as a sex offender rather

than for a new sex offense.3       Counsel contended that there was no

basis upon which the court could conclude that defendant was a

danger to juveniles and hence no justification for the special

conditions.    The district judge responded,

          What I'm going to do is give you 14 days to
          submit a motion stating the legal grounds as
          to which there should be entertained such a
          discrepancy and treatment of the law [sic],
          and you have my commitment that I'll look into
          it and do exactly the same type of research.




      2
           For example, the court forbade Gonzalez-Rodriguez from
"personal,    mail,   telephone,    or   computer    contact   with
children/minors under the age of 18 or with the victim," from
"employ[ment] in a job requiring contact with children/minors under
the age of 18 or with the victim," and from "involve[ment] in any
children’s or youth organization."
      3
          These arguments echoed earlier objections that defense
counsel had made to the Probation Office's Presentence Report.

                                     -4-
Defense counsel then raised additional arguments, and the district

court asked that those arguments be included in the motion as well.

The court did not alter its statement that any appeal had to be

filed within 14 days of entry of judgment.

             The court entered final judgment on February 28, 2012,

entirely consistent with its oral judgment.             Defendant took no

appeal from entry of that judgment within 14 days.

             On March 9, 2012, 10 days after judgment was entered,

defendant filed a "Motion For Reconsideration Of Sentence," in

which he argued that his sentence was "excessive and greater than

necessary to comply with the purposes set forth in 18 U.S.C.

§ 3553" and that the district court had imposed unwarranted and

unconstitutional    conditions     on   his   supervised     release.   The

district court did not act on the motion before the 14th day after

judgment was entered.      It eventually denied the motion, but not

until January 31, 2013.        The text order stated simply that "[t]he

conditions     imposed   are    reasonably    related   to    defendant[']s

conviction and prior record."       Defendant filed a notice of appeal

on February 4, 2013, purporting to appeal from both the judgment

and the denial of his self-styled motion for reconsideration.           No

prior appeal had been taken.

             Defendant's opening brief on appeal argues only that the

district court imposed unreasonable conditions on his supervised

release.     The brief fails in its obligation to first address the


                                     -5-
existence of appellate jurisdiction, merely asserting that the

appeal was timely. See Calderón-Serra v. Wilmington Trust Co., 715

F.3d   14,    17    (1st    Cir.    2013)     ("'[T]he    party    invoking    the

jurisdiction of a federal court carries the burden of proving its

existence.'" (alteration in original) (quoting Murphy v. United

States, 45 F.3d 520, 522 (1st Cir. 1995))).                     The government's

brief, filed on January 8, 2014, directly challenged jurisdiction.

Yet defendant ignored that challenge and failed to file a reply.

             This court then ordered defendant to file a reply brief

on the question of jurisdiction.              In the reply brief, defendant

acknowledges that the appeal failed to comply with the requirements

of   Fed.    R.    App.    P.   4(b),   but   argues     that   his   motion   for

reconsideration should make his appeal timely.                    We reject this

argument.     We do not reach the merits of defendant's claim as to

his supervised release conditions because defendant failed to file

a notice of appeal from the February 28, 2012, judgment within the

time limit set by Fed. R. App. P. 4(b).

                                        II.

             The basic rule regarding time limits for criminal appeals

is that "a defendant's notice of appeal must be filed in the

district court within 14 days after . . . the entry of either the

judgment or the order being appealed." Fed. R. App. P. 4(b)(1)(A).

Compliance with the time limits set forth in Fed. R. App. P. 4(b)

is mandatory.       United States v. Rapoport, 159 F.3d 1, 3 (1st Cir.


                                        -6-
1998).4   "Indeed, Fed. R. App. P. 26(b) explicitly prohibits [a

Court of Appeals] from enlarging the time permitted for filing a

notice of appeal."   Id.

           Fed. R. App. P. 4(b)(3)(A) restricts to only three the

types of motions that can suspend the 14-day period set forth in

Rule 4(b)(1)(A): (1) a motion for judgment of acquittal under Fed.

R. Crim. P. 29, (2) a motion for a new trial under Fed. R. Crim. P.

33, and (3) a motion for arrest of judgment under Fed. R. Crim. P.

34.   The advisory notes to Fed R. App. P. 4(b)(5) make clear that

these are the only motions that suspend the time to appeal in

criminal cases.   See Fed. R. App. P. 4(b)(5) advisory committee's

note (2002 Amendments).5


      4
          The government maintains that the Fed. R. App. P. 4(b)
time limits are jurisdictional. While earlier decisions of this
court have so held, see, e.g., Rapoport, 159 F.3d at 3, several
circuits have determined that, in light of recent Supreme Court
guidance on the difference between jurisdictional rules and
"non-jurisdictional claims-processing" rules, the Fed. R. App. P.
4(b) time limits fall in the latter category. See United States v.
Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011) (per curiam)
(collecting cases). See generally Bowles v. Russell, 551 U.S. 205,
209-13 (2007) (describing the difference between jurisdictional
rules and claims-processing rules and holding that the time limits
set forth in Fed. R. App. P. 4(a)(6) are jurisdictional). We need
not decide the question here because the time limits, even if not
jurisdictional, are mandatory when raised by the government. See,
e.g., United States v. Townsend, 762 F.3d 641, 644 (7th Cir. 2014);
Gaytan-Garza, 652 F.3d at 681; United States v. Sadler, 480 F.3d
932, 939-40 & n.10 (9th Cir. 2007); see also Rapoport, 159 F.3d at
3.
      5
           The 2002 amended version of Fed. R. App. P. 4(b)(5)
expressly rejects the First Circuit's earlier holding in United
States v. Morillo, 8 F.3d 864 (1st Cir. 1993), that the filing of
a Rule 35 motion for correction of a sentence suspends the time for

                                -7-
          Here, final judgment was entered on February 28, 2012,

and defendant did not file his notice of appeal until nearly a year

later, on February 4, 2013.6      Defendant concedes that his self-

styled "motion for reconsideration" is not one of the motions

listed in Fed. R. App. P. 4(b)(3)(A).     Defendant's appeal of the

judgment of conviction was untimely.

          Defendant invites us to construe his notice of appeal as

an appeal from the district court's January 31, 2013, order denying

his motion for reconsideration.    Even if his appeal is untimely as

to his original sentence, defendant argues that it is not untimely

as to the denial of his motion for reconsideration.    Defendant is

wrong for several reasons.

          This court has recently emphasized that "[t]here is

simply no such thing as a 'motion to reconsider' an otherwise final

sentence . . . ."   United States v. Ortiz, 741 F.3d 288, 292 n.2

(1st Cir. 2014) (second alteration in original) (quoting United

States v. Dotz, 455 F.3d 644, 648 (6th Cir. 2006)).      In appeals



filing a notice of appeal. See Fed. R. App. P. 4(b)(5) advisory
committee's note (2002 Amendments); 16A Wright & Miller, Federal
Practice and Procedure § 3950.10 (4th ed. 2014) ("In 2002, Rule
4(b)(5) was amended to reject the view, taken by some courts, that
a motion [for correction of a sentence] tolled the time to appeal
the judgment of conviction.").
     6
          There was no extension of time for the notice of appeal.
See Fed. R. App. P. 4(b)(4) (providing that a district court,
"[u]pon a finding of excusable neglect or good cause," may grant a
30-day extension of the time in which a defendant may file a notice
of appeal).

                                  -8-
unrelated to sentencing, motions to reconsider, recognized at

common law,7 may be valid and may extend time limits, at least when

filed by the government.   See, e.g., United States v. Ibarra, 502

U.S. 1, 6-7 (1991).   As explained in Ibarra and like cases, that is

because there is no final judgment until the court rules on the

reconsideration motion.    See id. at 6.

          But as to sentencing, Congress has eliminated the common-

law practice of allowing motions for reconsideration.       As well

explained in United States v. Townsend, 762 F.3d 641 (7th Cir.

2014), that resulted from the passage of the Sentencing Reform Act

of 1984, which encompasses 18 U.S.C. § 3582(c).   Id. at 645.   As we

have said, under the current statutory scheme, "[o]nce a district

court imposes a term of imprisonment, it may modify that term only

to the extent authorized by 18 U.S.C. § 3582(c)." United States v.

Griffin, 524 F.3d 71, 83 (1st Cir. 2008).     That statute in turn

provides, in relevant part, that a "'court may not modify a term of

imprisonment once it has been imposed except that . . . the court

may modify an imposed term of imprisonment to the extent otherwise

expressly permitted by statute or by Rule 35 of the Federal Rules

of Criminal Procedure.'"      Id. at 83 n.13 (quoting 18 U.S.C.



     7
          At common law, there was inherent authority in the
district court to allow motions for reconsideration in criminal
cases, even in the sentencing context, within the "original period
for review."    See United States v. Healy, 376 U.S. 75, 78-79
(1964); Townsend, 762 F.3d at 645-46. There is no need to detail
the history of this doctrine.

                                 -9-
§ 3582(c)(1)(B)).    A criminal defendant who requests from the

district court a correction or reduction of a sentence after

judgment is entered must proceed within the confines of Fed. R.

Crim. P. 35(a), unless there is some statutory basis for the

requested relief.    See Townsend, 762 F.3d at 647 (holding that,

because defendant "cite[d] no statute permitting" his challenge to

the propriety of his sentence, "the court was authorized to proceed

only within the constraints of Rule 35"); Ortiz, 741 F.3d at 292

n.2 (noting that a district court's authority to grant relief to a

defendant claiming a sentencing error "stems solely from [Rule

35(a)]'s positive law, not from any inherent power"); Griffin, 524

F.3d at 83 & n.13.     Where the defendant does not identify the

source for his motion, we see if it fits within Rule 35(a).

          Fed. R. Crim. P. 35(a) provides that, "[w]ithin 14 days

after sentencing, the court may correct a sentence that resulted

from arithmetical, technical, or other clear error."       We doubt

Gonzalez-Rodriguez's motion falls within the purview of Rule 35(a),

since the error of which he complained was not an "arithmetical" or

"technical" mistake in the calculation of a sentence.8   See Fed. R.

Crim. P. 35 advisory committee's note (1991 Amendments) ("The

authority to correct a sentence under [Rule 35(a)] is intended to


     8
          Rule 35(a) covers conditions of supervised release as
well as terms of imprisonment. See United States v. Brown, 235
F.3d 2, 4 (1st Cir. 2000) ("A supervised release term is an
integral part of a sentence, separate from and in addition to
immurement.").

                               -10-
be very narrow and to extend only to those cases in which an

obvious error or mistake has occurred in the sentence . . . .                 The

subdivision     is       not    intended       to   afford    the     court   the

opportunity     .    .    .    simply   to     change   its   mind    about   the

appropriateness of the sentence.").

             Even if the motion had fit within Fed. R. Crim. P. 35(a),

the court did not rule on it within the time limits prescribed by

that rule.     The 14-day time limit of Fed. R. Crim. P. 35(a) is

jurisdictional, and so "a district court choosing to resentence

under that Rule must do so within [14] days of the initial

sentence."     Griffin, 524 F.3d at 83-85 & n.14 (collecting cases);

United States v. Shank, 395 F.3d 466, 469-70 (4th Cir. 2005) (Motz,

J.) (collecting cases).9         That is, "the motion must be ruled on by

the district court within [14] days, not simply filed with the

clerk of court during that time." United States v. Wisch, 275 F.3d

620, 626 (7th Cir. 2001).          If the 14-day time period expires with

no   ruling    from      the    district     court,     the   district   judge's

jurisdiction to alter the sentence is extinguished, and the motion

is deemed denied as of the date the period expires.                  See Griffin,




     9
          Griffin and Shank were interpreting an older version of
Fed. R. Crim. P. 35(a), which set the time limit at 7 days rather
than 14. Rule 35(a) was amended in 2009 to "expand this period to
14 days" "[i]n light of the increased complexity of the sentencing
process."   Fed. R. Crim. P. 35 advisory committee's note (2009
Amendments).

                                        -11-
524 F.3d at 83-85; United States v. Fahm, 13 F.3d 447, 453 (1st

Cir. 1994).10

              Defendant could have avoided this outcome by filing a

notice of appeal from his original sentence within 14 days of the

judgment of conviction.         He faced no impediment to doing so.         We

noted in Ortiz that the filing of such a notice of appeal does not

deprive the district court of jurisdiction over a post-judgment

motion properly before it.        741 F.3d at 291 n.1;      see also Fed. R.

App. P. 4(b)(5) ("The filing of a notice of appeal under this Rule

4(b) does not divest a district court of jurisdiction to correct a

sentence under Federal Rule of Criminal Procedure 35(a), nor does

the filing of a motion under 35(a) affect the validity of a notice

of   appeal    filed   before   entry   of   the   order   disposing   of   the

motion.").

              The district court may share some of the responsibility

for this, as it invited counsel to file a motion for which the

rules likely did not provide, and to do so on a schedule likely to

doom the motion even to the extent that the rules allowed it.               But




      10
          There is dicta in Ortiz which appeared to suggest that a
district court has authority to rule on a Fed. R. Crim. P. 35(a)
motion outside of the time limit set forth in the rule. See Ortiz,
741 F.3d at 291-92 (assuming that defendant could have appealed
from the district court's denial of a Rule 35(a) motion that
occurred over a month after sentence was imposed). That issue was
not before the Ortiz court, and Ortiz did not purport to overrule
Fahm or Griffin.

                                     -12-
that does not excuse counsel's failure to abide by the clear

deadlines of Fed. R. App. P. 4(b).11

                               III.

          For these reasons, we dismiss the appeal as untimely.




     11
          We note that counsel on appeal was not trial counsel.

                               -13-
