                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2005

USA v. Benanti
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1965




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"USA v. Benanti" (2005). 2005 Decisions. Paper 979.
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BPS-253                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 05-1965
                                 ________________

                            UNITED STATES OF AMERICA

                                            v.

                               MICHAEL BENANTI,

                                                 Appellant
                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                          (D.C. Crim. No. 92-CR-00314)
                    District Judge: Honorable Edwin M. Kosik
                  _______________________________________


   Submitted For Possible Dismissal due to a Jurisdictional Defect and for Possible
          Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 3, 2005

          Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges

                               (Filed: June 21, 2005 )


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     Appellant Michael Benanti appeals from an order of the United States District
Court for the Middle District of Pennsylvania, denying his motion under 18 U.S.C.

§ 3582(c) for reduction of sentence. As this appeal presents no substantial question of

law, we will affirm the District Court’s order.

       In December 1992, appellant Michael Benanti was convicted by a jury of seven

counts out of an eight count indictment for, inter alia, conspiracy to commit a bank

robbery and solicitation, and was sentenced to 210 months’ imprisonment. In December

1994, this Court affirmed the judgment. See United States v. Benanti, 46 F.3d 1118 (3d

Cir. 1994). Following unsuccessful attempts in 1997 and 2003 to file motions pursuant to

28 U.S.C. § 2255, Benanti filed the instant motion for reduction of sentence. Benanti

claimed that his sentence should be reduced by application of Amendment 591 of the

United States Sentencing Guidelines. The District Court denied relief. Benanti filed a

motion for reconsideration, which the District Court denied. Benanti appealed.

                                      I. Jurisdiction

       The District Court’s initial order denying relief was entered Friday, February 11,

2005. As several of our sister courts have held, a § 3582(c)(2) motion is considered a

continuation of the criminal proceedings against a defendant; thus, the ten-day period for

filing a notice of appeal applies. See, e.g., United States v. Espinosa-Talamantes, 319

F.3d 1245, 1246 (10th Cir. 2003); United States v. Arrango, 291 F.3d 170, 171 (2d Cir.

2002); Fed. R. App. P. 4(b)(1)(A). The ten-day period is mandatory and jurisdictional.

United States v. Robinson, 361 U.S. 220, 224 (1960); United States v. Grana, 864 F.2d



                                             2
312, 314 (3d Cir. 1989). Benanti filed a notice of appeal dated March 21, 2005.

       However, Benanti filed a motion for reconsideration. If his motion was timely,

then the time for appeal was extended until 10 days after the order denying the

reconsideration motion was entered. A motion for reconsideration of an order affecting

the final judgment in a criminal case is timely filed if made within the period allotted for

the noticing of an appeal; i.e., within 10 days. United States v. Cook, 670 F.2d 46, 48 (5 th

Cir. 1982). Benanti’s motion for reconsideration was not filed within 10 days of the

February 11 th order.

       Nevertheless, in United States v. Grana, 864 F.2d 312, 316 (3d Cir. 1989), this

Court held that “in computing the timeliness of pro se prisoners’ appeals, any prison delay

in transmitting to the prisoner the notice of the District Court’s final order shall be

excluded from the computation of an appellant’s time for taking an appeal.” According

to Benanti’s motion for reconsideration, he did not receive the February 11, 2005 order

until March 1, 2005, because prison officials delayed in forwarding the order to the

proper prison. Applying Grana to exclude prison delay from the computation of the time

to file his motion for reconsideration, the motion for reconsideration was timely.

Benanti’s notice of appeal was filed within 10 days of the District Court’s March 15,

2005 order denying his motion for reconsideration, and is thus also timely.

                                          II. Merits

       We next consider whether the District Court properly denied Benanti’s motion to



                                               3
    reduce his sentence. In this context, we exercise plenary review over legal questions

    concerning the proper interpretation of the Sentencing Guidelines. See United States v.

    Thompson, 70 F.3d 279, 280-81 (3d Cir. 1995).

           Section 3582(c)(2) provides in relevant part:

           (c)    The court may not modify a term of imprisonment once it has been imposed
           except that –

           (2) in the case of a defendant who has been sentenced to a term of imprisonment
           based on a sentencing range that has subsequently been lowered by the Sentencing
           Commission . . . the court may reduce the term of imprisonment, after considering
           the factors set forth in section 3553(a) to the extent that they are applicable, if such
           a reduction is consistent with applicable policy statements issued by the
           Sentencing Commission.

    18 U.S.C. § 3582(c)(2). A sentencing guideline that has been amended after a defendant

    has been sentenced may be applied retroactively in a § 3582 proceeding if it is given

    retroactive effect under § 1B1.10 of the United States Sentencing Guidelines. Thompson,

    70 F.3d 281. Amendment 591 is given retroactive effect in § 1B1.10; thus, a defendant

    may seek relief pursuant to that amendment.1

           We agree with the District Court, however, that Benanti’s sentence is not affected

    by Amendment 591. Amendment 591 to the United States Sentencing Guidelines

    changed U.S.S.G. §§ 1B1.1 and 1B1.2, the Application Note to § 1B1.2, and the




       1
1        In United States v. Diaz, 245 F.3d 294, 301 (3d Cir. 2001), we held that Amendment
2   591 is not retroactively applicable to a case pending on direct appeal. Diaz is not
3   applicable here, as Benanti’s case involves a motion for reduction of sentence pursuant to
4   the amendment, which the Guidelines specifically authorize.

                                                  4
    Introduction to the Statutory Index (Appendix A). One result of these changes is that the

    Statutory Index (Appendix A) no longer merely aids the sentencing court in finding the

    most applicable guideline among several possibilities but instead (with certain

    exceptions) conclusively points the court to the one guideline applicable in a given case:

    “the sentencing court must apply the offense guideline referenced in the Statutory Index

    for the statute of conviction.” Diaz, 245 F.3d at 302. As the District Court explained in

    denying Benanti’s motion, the court’s selection of the applicable guidelines provisions in

    his case did in fact comply with the Amendment because its selection tracked the statutes

    Benanti violated.

           For the forgoing reasons, we will affirm the District Court’s order.2




       2
1       We further hold that the District Court properly denied Benanti’s motion for
2   reconsideration.

                                                 5
