           Case: 16-14819   Date Filed: 02/27/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 16-14819
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:14-cr-00217-WSD-AJB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

EPHREN TAYLOR, II,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (February 27, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ephren Taylor seeks review of the district court’s order granting the

government’s motion for a 12-month sentence reduction for post-sentencing

substantial assistance under Fed. R. Crim. P. 35(b). He argues that the district

court erred when it granted the government’s substantial assistance motion because

it failed to take into account multiple factors that counseled in favor of a greater

sentence reduction, such as allegedly ineffective assistance of counsel and his drug

abuse problems. He also argues that the amount of assistance that he provided was

worth more than a one-year sentence reduction. Finally, he argues that his counsel

was ineffective at sentencing and that the district court erred at sentencing by

failing to compel the government to file a motion for a downward departure under

U.S.S.G. § 5K1.1.

      We review the district court’s legal rulings on a substantial assistance

motion under Fed. R. Crim. P. 35(b) de novo. United States v. Chavarria-Herrara,

15 F.3d 1033, 1036 (11th Cir. 1994).

      Under Fed. R. Crim. P. 35(b), the government may file a motion to reduce a

defendant’s sentence if the defendant provides substantial assistance after

sentencing in prosecuting or investigating another person. Fed. R. Crim. P. 35(b).

A decision by the district court to grant or deny a Rule 35(b) motion is

discretionary. United States v. Manella, 86 F.3d 201, 204-05 & n.6 (11th Cir.

1996). A Rule 35(b) motion is meant to provide relief for substantial assistance


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provided after sentencing, whereas a motion by the government under U.S.S.G.

§ 5K1.1 is meant to provide relief for any substantial assistance that the defendant

provided before sentencing. U.S.S.G. § 5K1.1; Fed. R. Crim. P. 35(b); United

States v. Howard, 902 F.2d 894, 896 (11th Cir. 1990). Nevertheless, the district

court may consider the defendant’s pre-sentence assistance when ruling on a Rule

35(b) motion. Fed. R. Crim. P. 35(b)(3).

      When a district court grants a sentence-reduction motion for substantial

assistance, “[s]uch sentence shall be imposed in accordance with the guidelines

and policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3553(e); Chavarria-Herrara, 15 F.3d at 1037 n.7. When evaluating the extent of

a defendant’s substantial assistance, the Sentencing Guidelines provide that a court

should consider factors that include (1) the court’s evaluation of the significance

and usefulness of the defendant’s assistance; (2) the truthfulness, completeness,

and reliability of any information provided by the defendant; (3) the nature and

extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk

of injury to the defendant or his family resulting from the assistance; and (5) the

timeliness of the defendant’s assistance. U.S.S.G. § 5K1.1(a).

      Appeals from a district court’s discretionary decision to deny or grant a Rule

35(b) motion are generally not within our subject matter jurisdiction. See Manella,

86 F.3d at 203. However, a defendant may raise the legal issue of whether the


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district court misapplied Rule 35(b) by relying on improper factors and therefore

imposed a sentence in violation of law. Id.

      A district court’s decision to reduce a sentence under Rule 35(b) may be

based only on factors related to the defendant’s substantial assistance, and it is

error to consider any other factor that would counsel in favor of a sentence

reduction. Chavarria-Herrara, 15 F.3d at 1037 (concluding that the district court

erred when it considered the defendant’s first-time offender status, relative

culpability, and good prison behavior when granting a sentence reduction under

Rule 35(b)). A district court may consider other factors, including the factors

listed in 18 U.S.C. § 3553(a), but only to the extent that they militate against a

sentence reduction or in favor of a smaller reduction. Manella, 86 F.3d at 204-05.

      An appellate court generally cannot adequately decide an ineffective

assistance of counsel claim raised for the first time on direct appeal because the

focus at trial was not whether defense counsel’s actions were prejudicial or

supported by reasonable strategy. Massaro v. United States, 538 U.S. 500, 504-05

(2003). The preferable means for deciding a claim of ineffective assistance of

counsel is through a 28 U.S.C. § 2255 motion, “even if the record contains some

indication of deficiencies in counsel’s performance.” Id.

      In a criminal case, a defendant must file a notice of appeal within 14 days

after the challenged order is entered on the docket. Fed. R. App. P. 4(b)(1)(A).


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However, the deadline in Rule 4(b) for a defendant to file a notice of appeal in a

criminal case is not jurisdictional. United States v. Lopez, 562 F.3d 1309, 1313

(11th Cir. 2009). Nevertheless, if the government raises the issue of timeliness,

then this Court must apply the time limit. Id. at 1313-14. A pro se prisoner’s

notice of appeal is deemed filed on the date that he delivers it to prison authorities

for mailing, and, absent evidence to the contrary, we will assume that a prisoner

delivered a filing to prison authorities on the day the prisoner signed it.

Fed. R. App. P. 4(c)(1); United States v. Glover, 686 F.3d 1203, 1205 (11th Cir.

2012).

      A judgment of conviction that includes a sentence of imprisonment

“constitutes a final judgment for all other purposes” notwithstanding the fact that a

sentence to imprisonment can subsequently be modified or corrected under Rule

35(b). 18 U.S.C. § 3582(b), (c). We have concluded that a district court’s

resentencing following the grant of a Rule 35(b) motion does not reset the statute

of limitations to file a 28 U.S.C. § 2255 motion to vacate. Murphy v. United

States, 634 F.3d 1303, 1314 (11th Cir. 2011). In reaching this holding, we

concluded that Congress made clear in § 3582(b), that a sentence modification

under Rule 35(b) does not affect the finality of the judgment for “any other

purpose.” Id. at 1309. “Had Congress not done so, a defendant could have argued

that a sentence modification entitled him to a new direct appeal where he could


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challenge anything that could have been challenged on a first direct appeal.” Id. at

1308. We also stated that a Rule 35(b) motion is merely a plea for leniency and

that “it is impossible for the validity of the underlying conviction, and, indeed, of

the sentence itself, to be at issue in a Rule 35(b) proceeding.” Id. at 1313 (citation

omitted).

      The district court was correct to overlook the sentencing factors in 18 U.S.C.

§ 3553(a), or any other reason that was not related to Taylor’s substantial

assistance because a district court may only consider factors unrelated to the

defendant’s substantial assistance when those factors counsel against granting a

sentence reduction. We otherwise lack jurisdiction to address Taylor’s arguments

that the record shows that the substantial assistance he provided to the government

was worth more than a one-year reduction, and we decline to address any claims of

ineffective assistance of counsel at this time. Finally, Mr. Taylor’s notice of

appeal is untimely to seek review of his original sentencing.

      AFFIRMED.




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