                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3643

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

M ARK L. N EFF,
                                             Defendant-Appellant.


            Appeal from the United States District Court
                 for the Central District of Illinois.
            No. 91-CR-30043—Michael M. Mihm, Judge.



    S UBMITTED N OVEMBER 9, 2009—D ECIDED M ARCH 11, 2010




  Before E VANS and S YKES, Circuit Judges, and D ER-
Y EGHIAYAN, District Judge.
  D ER-Y EGHIAYAN, District Judge. Mark L. Neff was
convicted of possession of a firearm by a felon in viola-
tion of 18 U.S.C. § 922(g)(1) and given an enhanced sen-
tence based on his status as an armed career criminal



  Hon. Samuel Der-Yeghiayan, District Judge for the Northern
District of Illinois, is sitting by designation.
2                                               No. 08-3643

pursuant to 18 U.S.C. § 924(e)(1). The district court
denied a series of motions filed by Neff relating to mod-
ification of Neff’s sentence. After the district court
denied Neff’s latest motion, Neff filed notice of appeal
contesting the district court’s denial of that motion.
However, Neff’s notice of appeal was filed after the
deadline for filing notice of appeal in a criminal case,
promulgated in Federal Rule of Appellate Proce-
dure 4(b). The Government conceded that it failed to
properly invoke the time limits of Rule 4(b). For the
following reasons, we find that we have jurisdiction
to consider Neff’s appeal and we affirm the district
court’s denial of Neff’s latest motion relating to sen-
tence modification.


                      I. Background
  Mark L. Neff was convicted in the United States
District Court for the Central District of Illinois, Peoria
Division of possession of a firearm by a felon in violation
of 18 U.S.C. § 922(g)(1). On August 5, 1994, Neff was
sentenced as an armed career criminal under 18 U.S.C.
§ 924(e)(1), which defines an armed career criminal as “a
person who violates section 922(g) . . . and has three
previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Neff’s status as
an armed career criminal was based on his 1984 convic-
tion on two counts of residential burglary and his 1989
conviction on three counts of attempted burglary. As
an armed career criminal, Neff received an enhanced
sentence of 252 months’ imprisonment. Beginning in
No. 08-3643                                             3

March 2008, Neff sought modification of his sentence
pursuant to 18 U.S.C. § 3582(c)(2), Federal Sentencing
Guideline Amendment 709, and policy statement found
in United States Sentencing Guideline § 1B1.11(b)(2).
  Under 18 U.S.C. § 3582(c)(2), a court may modify a
term of imprisonment if a defendant “has been sentenced
to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.” Id. Federal Sentencing Guideline Amend-
ment 709, which took effect in 2007, provided that any
prior sentences resulting from offenses contained in the
same charging instrument or imposed on the same day
should be counted as a single sentence for the purpose
of calculating a defendant’s criminal history category.
See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2)
(2007). The policy statement contained in United States
Sentencing Guideline § 1B1.11(b)(2) indicated that “if a
court applies an earlier edition of the Guidelines
Manual [rather than the edition in effect at the time of
sentencing], the court shall consider amendments, to the
extent that such amendments are clarifying rather
than substantive changes.” Id. (2007).
  On July 3, 2008, after filing a series of pro se motions
that the district court denied, Neff filed a pro se motion
asking the court to determine whether Amendment 709
was clarifying or was substantive. Neff argued in the
motion that if the court found Amendment 709 to be
clarifying in nature, Amendment 709 would apply retro-
4                                               No. 08-3643

actively to reduce Neff’s sentence. On July 10, 2008,
the district court found that Neff was ineligible for re-
duction of his sentence and denied Neff’s motion. Due
to an apparent clerical error, Neff did not receive notice
of the court’s order until more than three months later.
Upon learning of the court’s order, Neff immediately
filed a notice of appeal. On December 18, 2008, we dis-
missed Neff’s appeal on jurisdictional grounds, noting
that Federal Rule of Appellate Procedure 4(b) required
notice of appeal in a criminal case to be filed within
10 days (at that time, now 14 days) of the entry of judg-
ment or order appealed. Subsequently, the Government
informed the court that, based on the unique circum-
stances of this case and for strategic reasons, the Govern-
ment would concede, for purposes of this appeal, that it
had failed to properly invoke the time limits of Rule 4(b).
On February 3, 2009, we vacated our dismissal order
and appointed counsel to represent Neff in this appeal.
We also indicated in our order that “in addition to any
other issues counsel deems appropriate, counsel shall
address whether the time limits in Rule 4(b) of the
Federal Rules of Appellate Procedure for notices of
appeal in criminal cases are jurisdictional or instead are
claim-processing rules that the government may for-
feit.” (App. at 50).


                      II. Discussion
  The issue before us is whether the time limits in
Rule 4(b) are jurisdictional or are instead claim-processing
rules that can be waived or forfeited. In Kontrick v. Ryan,
540 U.S. 443, 124 S.Ct. 906 (2004), the Supreme Court
No. 08-3643                                                  5

observed that “only Congress may determine a fed-
eral lower court’s subject matter jurisdiction,” and that,
accordingly, Federal Rules of Bankruptcy Procedure
4004 and 9006(b)(3) were non-jurisdictional “claim-pro-
cessing rules that do not delineate what cases bank-
ruptcy courts are competent to adjudicate.” Id. at 452-54,
124 S.Ct. at 914. The Supreme Court similarly held in
Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403 (2005),
that the time limitation in Federal Rule of Criminal Pro-
cedure 33 was not jurisdictional and could therefore
be excused if not properly invoked. Id. at 19, 126 S.Ct. at
407. Further, in Bowles v. Russell, 551 U.S. 205, 127 S.Ct.
2360 (2007), the Supreme Court distinguished Federal
Rule of Appellate Procedure 4(a) from Federal Rule of
Bankruptcy Procedure 4004, determining that since
Rule 4(a) is based upon federal statute, the time limit in
Rule 4(a) is therefore jurisdictional. Id. at 212-14, 127 S.Ct.
at 2365-66. We stated in Asher v. Baxter Intern. Inc., 505
F.3d 736 (7th Cir. 2007), that “Bowles holds that statutory
deadlines for appeal are jurisdictional, but read in con-
junction with decisions such as Eberhart, . . . holds out
the possibility that deadlines in the federal rules are just
claim-processing norms.” Id. at 741.
  Rule 4(b) does not have a statutory basis. Rule 4(b) was
adopted in 1967 and derived from former Federal Rule
of Criminal Procedure 37(a)(2). Since the prescribed
deadline to file a notice of appeal in a criminal case pro-
mulgated in Rule 4(b) is not a Congressionally-created
statutory limitation, we find that it is not jurisdictional
and is merely a claim-processing rule that can be for-
feited. We note that other Circuits that have considered
this issue have similarly found that the time limit in
6                                               No. 08-3643

Rule 4(b) is not jurisdictional. See, e.g., United States v.
Frias, 521 F.3d 229, 233 (2d Cir. 2008) (citing United States
v. Garduño, 506 F.3d 1287, 1288 (10th Cir. 2007), United
States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007) (per
curiam), and United States v. Sadler, 480 F.3d 932, 934
(9th Cir. 2007)).
  Since we have jurisdiction to hear Neff’s appeal, we
will proceed to the merits of his appeal. The district
court judge found that Neff was ineligible for reduction
because Amendment 709 was not retroactive and could
therefore not be applied to Neff. Thus, the district
court judge denied Neff’s motion to determine whether
Amendment 709 was clarifying or substantive. In United
States v. Alexander, 553 F.3d 591 (7th Cir. 2009), we held
that Amendment 709 substantively changed the sen-
tencing guidelines and we observed that Amendment
709 was not made retroactive. Id. at 592-93. In addi-
tion, we noted that even if Amendment 709 was
clarifying, the sentencing guidelines authorize the use of
a clarifying amendment only when the clarifying guide-
line precedes the sentence. Id. at 592. Neff’s sentence
does not meet this criteria since Neff was sentenced in
1994 and Amendment 709 became effective in 2007.
Based on the above, Neff’s appeal cannot succeed.


                     III. Conclusion
  For the above stated reasons, we A FFIRM the district
court’s decision.

                           3-11-10
