                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                    MAR 31, 2006
                                  No. 05-12980                    THOMAS K. KAHN
                              Non-Argument Calendar                   CLERK
                            ________________________

                        D. C. Docket No. 04-10014-CR-JLK

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                        versus

MAHDI JOHNSON,

                                                                Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                  (March 31, 2006)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Appellant Mahdi Johnson appeals his 96-month sentence for possession with

intent to distribute at least 1 gram of crack cocaine, in violation of 21 U.S.C. § 841,
and the denial of his motion for reconsideration. First, Johnson argues on appeal

that his sentence is unreasonable because the district court failed to consider his

arguments that: (1) his sentence should be reduced based on his diminished mental

capacity; (2) he would benefit by being placed in social services; (3) his criminal

history is disproportionately high because he is a retail seller; and (4) he should

receive a downward departure because he was a career offender. Johnson

acknowledges that he received a sentence below the guidelines because of his

undischarged state prison sentence, but maintains that his sentence is still

“draconian.”

      The government responds that we do not have jurisdiction because Johnson

did not file a timely notice of appeal from the judgment of conviction. The

government contends that a post-judgment motion to reconsider filed by Johnson

did not toll the time for filing a notice of appeal because neither it nor a timely

filed Fed. R. Crim. P. 35 motion are listed as tolling motions under Fed. R. App. P.

4(b)(3). The government further argues that we lack jurisdiction to review the

reasonableness of Johnson’s sentence because the notice of appeal does not

designate that it is appealing the judgment.

      Next, Johnson argues that the district court erred in denying his post-

judgment motion as untimely because his motion was not filed pursuant to Rule



                                            2
35. Johnson contends that federal practice allows a motion to reconsider a final

judgment to be filed within ten days and that it tolls the time for filing a notice of

appeal.

                                           I.

      We review issues of subject matter jurisdiction de novo. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

      A motion for reconsideration of a district court order in a criminal action is

not expressly authorized by the Federal Rules of Criminal Procedure, but the

Supreme Court has held that the timely filing of such a motion in a criminal action

tolls the time for filing a notice of appeal and the time begins to run anew

following disposition of the motion. See United States v. Dieter, 429 U.S. 6, 8-9,

97 S. Ct. 18, 19-20, 50 L. Ed. 2d 8 (1976); United States v. Vicaria, 963 F.2d 1412,

1413-14 (11th Cir. 1992). “A motion for reconsideration in a criminal case must

be filed within the period of time allotted for filing a notice of appeal in order to

extend the time for filing the notice of appeal.” Vicaria, 963 F.2d at 1414. In a

criminal case, a defendant’s notice of appeal must be filed in the district court

within ten days of the entry of either the judgment or the order being appealed.

Fed. R. App. P. 4(b)(1)(A)(i). “The timely filing of a notice of appeal is a

mandatory prerequisite to the exercise of appellate jurisdiction.” United States v.



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Grant, 256 F.3d 1146, 1150 (11th Cir. 2001) (citation omitted).

      After reviewing the record, we conclude that Johnson is correct that the

district court misinterpreted his motion as a Rule 35 motion instead of a motion to

reconsider allowed under federal practice. Johnson’s motion to reconsider was

timely filed within the ten-day period for filing a notice of appeal and, thus, tolled

the time period for filing a notice of appeal. See Vicaria, 963 F.2d at 1413-14.

The ten-day period for filing a notice of appeal started when the court denied the

motion on May 12, 2005. See id. Johnson then filed a notice of appeal on May 20,

2005. Therefore, we conclude from the record that we have jurisdiction to review

the district court’s order denying the motion to reconsider because the notice of

appeal was timely filed and designated that Johnson was appealing the May 12,

2005, order. See Fed. R. App. P. 3(c)(1)(b), 4(b)(1)(A)(i).

      With respect to the April 21 judgment, the notice of appeal stated that

Johnson was appealing “the Order Denying Defendant’s Motion to Reconsider

Sentence entered May 10, 2005.” Because notices of appeal must "designate the

judgment, order or part thereof appealed from," Fed. R. App. P. 3(c), we have

jurisdiction to review only those judgments or orders specified - expressly or

impliedly - in the notice of appeal, Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365,

1374-75 (11th Cir. 1983).



                                           4
       Where a notice of appeal specifies a particular judgment or ruling, we

normally infer that others are not part of the appeal. Id. Rule 3, however, must be

liberally construed, and mistakes in designation of orders to be appealed will be

overlooked where it was clear that the "overriding intent was effectively to appeal."

LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

Ultimately, the question is whether the notice of appeal and subsequent appellate

proceedings support an inference that, at the time of filing the notice of appeal, a

party sought to appeal the unspecified order. See Smith v. Atlas Off-Shore Boat

Serv., Inc., 653 F.2d 1057, 1060 n.1 (5th Cir. 1981) 1 (quoting Perington

Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1379 (10th Cir. 1979)).

       Here, Johnson’s notice of appeal and brief on appeal, liberally construed,

suggest that he wished to seek review of both the district court’s original judgment

and order denying his motion to reconsider. Thus, we will review the

reasonableness of Johnson’s sentence.

                                               II.

       We review a motion to reconsider for an abuse of discretion. See United

States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004).


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October
1, 1981.


                                                5
      A district court may not modify a term of imprisonment once it has been

imposed except: (1) where, upon motion of the Director of the Bureau of Prisons,

(a) extraordinary and compelling reasons warrant such a reduction, or (b) the

defendant is at least 70 years of age and the Bureau of Prisons determines that the

defendant is not a danger to the safety of any other person or the community; (2)

where permitted by statute or by Rule 35 of the Federal Rules of Criminal

Procedure; and where a sentencing range has subsequently been lowered by the

Sentencing Commission. 18 U.S.C. § 3582(c). Rule 35, however, only allows a

court to correct or reduce a sentence resulting from “arithmetical, technical or other

clear error” within seven days of sentencing, or to reduce a sentence upon motion

by the government for a reduction for substantial assistance. Fed. R. Crim. P. 35.

      Although the district court misinterpreted Johnson’s motion as falling under

Rule 35 and erred in finding that it lacked jurisdiction to rule on the motion

because it was not filed within the seven-day period required by Fed. R. Crim. P.

35(a), the court’s alternative basis for denying the order demonstrates that it did

not abuse its discretion. Johnson argued primarily in his motion that the court

should reconsider his sentence because the court misunderstood its authority to

impose his sentence concurrent with his state prison term and because Dr. Michael

Rappaport, a professional who reviewed his case and his mental capacity, updated



                                           6
a report relied on by the court at sentencing to reflect newly received information.

The court stated in its order though that, regardless of whether it had authority to

impose a concurrent sentence, Johnson’s sentence was equivalent to a concurrent

sentence because the court reduced his sentence to account for the state prison

term.

        In addition, while the court did not address in its order Johnson’s argument

regarding Dr. Rappaport’s report, Johnson thoroughly presented his arguments

regarding his mental capacity at sentencing. The court even commented at

sentencing that it had “a lot of difficulty” with the guidelines. The court reduced

Johnson’s sentence from 151 months, the low end of the guideline range, to 96

months. This sentence not only accounted for Johnson’s 37-month undischarged

state prison term, but also reduced his sentence an additional 18 months. Because

we may affirm on any ground supported by the record, United States v. Mejia, 82

F.3d 1032, 1035 (11th Cir. 1996), we hold that the district court did not abuse its

discretion, despite its errors in construing Johnson’s motion.

                                          III.

        We review a defendant’s ultimate sentence for reasonableness. United

States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Among the factors that

a district court should consider are the nature and circumstances of the offense, the



                                           7
history and characteristics of the defendant, the need for adequate deterrence and

protection of the public, the pertinent Sentencing Commission policy statements,

and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1)-(7). We have clarified that “nothing in [United States v. ] Booker

[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)] or elsewhere requires

the district court to state on the record that it has explicitly considered each of the

§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      Although the district court did not explicitly state that it was considering the

§ 3553(a) factors, Johnson’s ultimate sentence is reasonable. Johnson’s sentence is

less than half of the 20-year statutory maximum sentence, 21 U.S.C.

§ 841(b)(1)(C), and well below the guideline range of 151 to 188 months. The

district court expressed distress over the guideline sentence at sentencing,

presumably due to the high guideline sentence caused by the career offender

enhancement when some of his prior convictions were “minor.” Instead of

imposing a guideline sentence, the court not only reduced Johnson’s sentence by

37 months to account for his undischarged state term, but reduced his sentence an

additional 18 months and imposed a 96-month term of imprisonment. This

sentence indicates that the court thoroughly considered the nature and



                                            8
circumstances of the offense and Johnson’s history and characteristics and crafted

a sentence that would provide adequate deterrence but was not more severe than

necessary. Therefore, we hold that Johnson’s ultimate sentence is reasonable. For

the foregoing reasons, we affirm Johnson’s sentence.

      AFFIRMED.




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