                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2522




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                                                                   NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                   Nos. 07-2522, 07-2587


                            UNITED STATES OF AMERICA,

                                      Appellant, Cross-Appellee,

                                               v.

                                    SHELTON JOHNS,

                                      Appellee, Cross-Appellant.




         Appeal from the Judgment of the District Court for the District of Delaware
                        (District Court Criminal Action No. 06-47)
                      District Judge: The Honorable Gregory M. Sleet


                                   Argued May 15, 2008

       Before: McKEE, GARTH, Circuit Judges, and IRENAS,* Senior District Judge.

                                    Filed: June 17, 2008


                                         OPINION




IRENAS, Senior United States District Judge.


   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
       The United States appeals the Judgment of the District Court, imposing upon

Defendant Shelton Johns, a sentence of 36 months of imprisonment, three years of

supervised release, and a $100 special assessment. Johns cross-appeals. Because we

conclude that the district court lacked jurisdiction to impose the 36-month sentence, we

will vacate and remand with instructions.




                                              I.

       W e write only for the parties, therefore only a brief recitation of the relevant facts

and procedural history is necessary. Johns pleaded guilty to felon in possession of a

firearm charges on November 17, 2006. The first sentencing hearing was held on March

23, 2007.

       Prior to the March 23rd hearing, Johns submitted a sentencing memorandum and a

motion for a downward departure, or in the alternative, a downward variance in his

sentence. At the sentencing hearing, the district judge first addressed Johns’ motion,

stating to the defense, “I am prepared to address in fairly significant detail, the points that

you made in your papers. I understand them.” (A-39) The court went on to discuss

several of Johns’ arguments in favor of a downward departure and explained why it did

not agree that a departure was warranted.

       Johns’ attorney then briefly argued for a sentence less than the applicable

Sentencing Guidelines range of 70-87 months of imprisonment, while the government


                                              2
argued for a sentence within the Guidelines range.

      The district judge concluded the sentencing hearing by orally pronouncing Johns’

sentence:

      Mr. Johns, after having pled guilty to Count One of the indictment, you
      were found guilty of violating Title 18 of the United States Code, Sections
      922(g)(1) and 924(a)(2).
              It is therefore the Court’s judgment, pursuant to the Sentencing
      Reform Act of 1984, that you shall hereby be committed to the custody of
      the Bureau of Prisons for a term of 60 months. . . . The Court has
      considered all of the factors outlined in Title 18 United States Code,
      Section 3553(a), including the Sentencing Guidelines, and finds this
      sentence to be appropriate and reasonable. . . .
              Mr. Johns, after having considered the provisions of the U.S.
      Sentencing Guidelines, the advisory Guideline range, the Supreme Court’s
      ruling in United States v. Booker, the sentencing factors outlined in Title
      18 of United States Code, Section 3553(a), and the underlying goals of
      sentencing, including punishment, deterrence, and rehabilitation, I am
      sentencing you to a term of imprisonment, as I have said, of 60 months, or
      five years. . . .
              And I inquire of counsel, is there any reason you know of why
      sentence should not be imposed as stated?
              [Both counsel indicate no.]
              It is then the order of the Court that the sentence be imposed as
      stated.
              Mr. Johns you have the right to appeal this sentence within ten
      days. . . .
              The Clerk’s Office shall prepare the judgment, and my deputy clerk
      will enter the judgment of conviction.

(A-61-67) The hearing was recessed shortly thereafter.

      Despite the district court’s statements, a judgment reflecting the 60-month

sentence was never entered. Instead, on March 30, 2007, the district court, sua sponte,




                                            3
issued a “Notice of Re-Sentencing Hearing,” setting the resentencing for April 17, 2007.1

        The resentencing hearing on April 17th was very brief.2 The court opened the

hearing by stating, “the Court is not going to entertain discussion from either the

government or the defense. The Court has a short statement in support of the position

it’s going to take in the resentencing and that will be it.” (A-71) The court continued,

        I have reconvened the sentencing hearing in this case, because, after
        pronouncing sentence, it occurred to me that I had pronounced my
        sentence without giving effect to the sentiments expressed by Mr. Johns,
        [defense counsel], and . . . Johns’ mother, during the sentencing hearing.
        In other words, I made a mistake in imposing a sentence of 60 months
        upon Mr. Johns. Upon reflecting further on the issue, I have determined
        that the appropriate sentence for Mr. Johns is 36 months, rather than the
        60 months I imposed during the sentencing hearing.
               I believe that the sentence of 36 months more appropriately
        comports with the underlying goals of sentencing. . . . Moreover, when
        applying the 3553(a) factors to Mr. Johns . . . the Court concludes that a
        sentence of 36 months adequately achieves those goals of sentencing while
        taking into account those factors I have just described earlier.
               The Court’s sentence . . . reflects my thoughts regarding the most
        appropriate sentence, given the totality of the circumstances, including
        what transpired, and very importantly, what transpired in this courtroom
        during your first sentencing hearing. Given your comments during that
        hearing, I expect that this Court will never lay eyes on you again.
               Good luck.

(A-71-72)



   1
      A docket entry, dated March 23, 2007, states: “Remark: Upon further consideration
by the court, Judgment and Commitment Order for the sentencing held on 3/23/07 was
not issued and re-sentencing of the defendant was scheduled for 4/17/07.” However,
although the entry bears the date of March 23, 2007, the entry also indicates that it was
not entered onto the docket until April 20, 2007.
   2
       Indeed, the full transcript of the hearing occupies only two pages. (A-71-72)

                                              4
       On April 20, 2007, the Judgment reflecting the 36-month sentence was entered.

       The parties’ timely appeals followed.



                                              II.

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.

We have jurisdiction under both 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). U.S. v.

Higgs, 504 F.3d 456, 458 (3d Cir. 2007).

       We exercise plenary review over questions of law. United States v. Hull, 456 F.3d

133, 137 (3d Cir. 2006).




                                             III.

       Federal Rule of Criminal Procedure 35 provides: “(a) Correcting Clear Error.

Within 7 days after sentencing, the court may correct a sentence that resulted from

arithmetical, technical, or other clear error. . . . (c) ‘Sentencing’ Defined. As used in this

rule, ‘sentencing’ means the oral announcement of the sentence.”3

       After a thorough analysis of the history and purposes of Rule 35, this Court held in

Higgs that the seven-day time limit is jurisdictional, and that the district court must




   3
     The district court’s power to correct or modify a previously imposed sentence is
conferred by 18 U.S.C. § 3582(c), which expressly identifies action pursuant to Fed. R.
Crim. P. 35 as one of three instances when a sentenced may be changed. The other two
instances do not apply to this case.

                                               5
actually resentence a defendant within that time frame. 504 F.3d at 459-60, 463.4

Because the district court did not resentence Johns on or before April 3, 2007,5 the district

court lacked jurisdiction to sentence Johns to 36 months’ imprisonment.

       This conclusion is not altered by the fact that the district court issued a Notice of

Resentencing on March 30, 2007, because, for the reasons previously explained in

Higgs,6 the district court must actually resentence a defendant within seven days. Higgs

held that defense counsel’s Rule 35(a) motion, which was filed within seven days of the

oral pronouncement of the first sentence, did not preserve the district court’s jurisdiction

under Rule 35(a). 504 F.3d at 459-60. Likewise, we conclude that the district court’s sua

sponte issuance of the Notice of Resentencing cannot preserve jurisdiction or somehow

toll the time for correcting a sentence. To hold otherwise would be to effectively allow

the district court to enlarge its own jurisdiction, which it may not do. See Bowles v.



   4
      As noted in Higgs, this Court is by no means alone in its analysis of the seven-day
limit, as ten other Courts of Appeals have held the same. 504 F.3d at 462 (collecting
cases); see also U. S. v. Griffin, 524 F.3d 71, 83 n.14 (1st Cir. 2008) (“The courts of
appeals have uniformly held that Rule 35(a)’s seven-day time limit is jurisdictional.”)
(collecting cases).
   5
     Because the time limit in Rule 35(a) is less than eleven days, the Saturdays and
Sundays immediately following March 23, 2007 (i.e., Saturday, March 24, 2007; Sunday,
March 25, 2007; Saturday, March 31, 2007; and Sunday, April 1, 2007) are not counted in
the seven-day time period. See Fed. R. Crim. P. 45(a)(2).
   6
     See 504 F.3d at 459 (“The Advisory Committee noted that the ‘stringent time
requirement’ of seven days was shorter than the time for appealing the sentence so that if
the court did in fact correct the sentence within the seven days, the defendant could still
timely appeal the sentence if s/he so desired.”).

                                              6
Russell, 127 S.Ct. 2360, 2364 (2007) (“only Congress may determine a lower federal

court’s subject-matter jurisdiction”) (internal citations and quotations omitted).7

       Accordingly, we hold that the district court lacked jurisdiction to resentence Johns

on April 17, 2007.8




                                             IV.

       For the reasons stated above, the judgment of sentence will be vacated, and the

case remanded to the district court with instructions to enter a judgment reflecting the

sentence pronounced at the March 23, 2007 sentencing hearing.




   7
      Johns relies on Bowles to argue that the seven-day limit is procedural rather than
jurisdictional. His argument, however, is foreclosed by Higgs, which relied on Bowles to
hold that the limit is jurisdictional. See Higgs, 504 F.3d at 464 (“Rule 35’s time
limitation derives from the limitation set forth by statute, 18 U.S.C. § 3582(c). Cf. Bowles,
127 S.Ct. at 2365 (recognizing that the time limit in Supreme Court Rule 13.1 derives
from 28 U.S.C. § 2101(c)). Therefore, we hold that the seven-day time requirement set
forth in Rule 35(a) is jurisdictional.”); see also, Griffin, 524 F.3d at 84-85 (“We thus join
the Third Circuit in holding that Rule 35 is jurisdictional, in light of both Eberhart and
Bowles.”).
   8
     We express no opinion as to whether the sentence imposed on March 23, 2007,
“resulted from arithmetical, technical, or other clear error” as contemplated by Rule
35(a).

                                              7
