     06-5381-cr
     United States v. Frias



1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2007

4    (Submitted: January 22, 2008                   Decided: March 31, 2008)

5                               Docket No. 06-5381-cr

6                    -------------------------------------

7                             United States of America,

8                                     Appellee,

9                                       - v -

10                                 Octavio Frias,

11                              Defendant-Appellant.

12                   -------------------------------------

13   Before:     CARDAMONE, SACK, and KATZMANN, Circuit Judges.

14               Appeal by the defendant pro se from an amended judgment

15   of conviction in the United States District Court for the

16   Southern District of New York (John F. Keenan, Judge) for

17   conspiracy to commit murder in violation of 21 U.S.C.

18   § 848(e)(1)(A) in connection with a narcotics offense punishable

19   under 21 U.S.C. § 841(b)(1)(A), reimposing a sentence of life

20   imprisonment after Booker remand.      On appeal, the defendant

21   asserts insufficiency of the indictment, erroneous jury

22   instructions, and various sentencing errors.         The government

23   raises no objection to the untimeliness of the defendant's notice

24   of appeal.

25               Affirmed.
1                              Octavio Frias, Lewisburg, PA, pro se.

2                              Michael J. Garcia, United States
3                              Attorney for the Southern District of
4                              New York, Joshua A. Goldberg, Celeste L.
5                              Koeleveld, Assistant United States
6                              Attorneys, New York, NY, for Appellee.

7    SACK, Circuit Judge:

8               Defendant Octavio Frias appeals pro se from an amended

9    judgment of conviction in the United States District Court for

10   the Southern District of New York (John F. Keenan, Judge) for

11   conspiracy to commit murder in violation of 21 U.S.C.

12   § 848(e)(1)(A) in connection with a narcotics offense punishable

13   under 21 U.S.C. § 841(b)(1)(A), which reimposes a sentence of

14   life imprisonment after Booker remand.   The government raises no

15   objection to the untimeliness of the defendant's notice of

16   appeal.

17              We are called upon to decide whether Federal Rule of

18   Appellate Procedure 4(b), which governs the time to appeal from a

19   criminal judgment, requires us to dismiss sua sponte an untimely

20   appeal.   We conclude that the time limits of Rule 4(b) are not

21   jurisdictional and are therefore capable of forfeiture by the

22   government.   Frias's appeal nonetheless lacks merit.   We

23   therefore affirm his conviction and sentence.

24                                   I.

25              On January 2, 2003, the defendant, Octavio Frias, was

26   charged by superseding indictment with one count of committing

27   murder while engaged in a conspiracy to distribute and possess

28   with intent to distribute more than one kilogram of heroin and

                                      2
1    more than five kilograms of cocaine.      Viewed in the light most

2    favorable to the government, the evidence at trial established

3    that Frias assisted in a large-scale narcotics and gambling

4    operation run by Roberto Martinez-Martinez, a/k/a "Papito," and

5    Mario Lobo, a/k/a "Alberto Cruz."      When Lobo's gambling losses

6    threatened the narcotics business, Martinez-Martinez decided to

7    have Lobo killed.   Frias made all the arrangements: he hired

8    gunmen, pointed out Lobo for them on the night of the murder, and

9    paid their travel expenses when the job was successfully

10   completed.   On March 12, 2003, the jury returned a verdict of

11   guilty.   On July 1, 2004, the court sentenced Frias principally

12   to a term of life imprisonment.1

13              Frias appealed.   We summarily affirmed his conviction

14   but remanded for resentencing in light of United States v.

15   Booker, 543 U.S. 220 (2005).   United States v. Frias, No. 04-

16   4106-cr, slip op. at 3 (2d Cir. Sept. 28, 2005) ("Frias I").      On

17   January 4, 2006, the district court, having conducted sentencing

18   proceedings anew pursuant to our remand, entered an amended

19   judgment again imposing a life sentence.

20              On September 28, 2006, proceeding pro se, Frias filed a

21   notice of appeal.   In his brief on appeal, Frias asserts

22   insufficiency of the indictment, erroneous jury instructions, and

23   various sentencing errors.   Frias also concedes that his appeal



          1
            Judge Allen G. Schwartz, who presided at trial, passed
     away shortly thereafter. The case was then reassigned to Judge
     Keenan for sentencing.

                                        3
1    is untimely, stating that his attorney refused to file an appeal

2    on his behalf after resentencing.      The government's brief

3    responds to each of Frias's claims but makes no mention of the

4    appeal's untimeliness.

5                                     II.

6                We consider sua sponte our subject-matter jurisdiction

7    over this appeal, "as we are obliged to do [irrespective of

8    whether either party raises the issue] when it is questionable."

9    Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001).

10   Here, Frias concedes that his notice of appeal was untimely but

11   the government has not asked us to dismiss his appeal for that

12   reason.

13               We have stated that the time limits prescribed by

14   Federal Rule of Appellate Procedure 4(b), which governs the time

15   to appeal from a criminal judgment, are jurisdictional, barring

16   us from adjudicating the merits of an untimely appeal.2     See


          2
              Rule 4(b) states, in relevant part:

                 (1) Time for Filing a Notice of Appeal.

                      (A) In a criminal case, a defendant's
                 notice of appeal must be filed in the
                 district court within 10 days after the later
                 of:
                      (I) the entry of either the judgment or
                 the order being appealed; or
                      (ii) the filing of the government's
                 notice of appeal.

                 ...

                 (4) Motion for Extension of Time. Upon a
                 finding of excusable neglect or good cause,
                 the district court may –- before or after the
                 time has expired, with or without motion and
                                       4
1    United States v. Fuller, 332 F.3d 60, 64 (2d Cir. 2003) (although

2    it was undisputed, treating failure to comply with time limits in

3    Rule 4(b) as jurisdictional); United States v. Ferraro, 992 F.2d

4    10, 11 (2d Cir. 1993) (per curiam) ("[T]he requirement of a

5    timely notice of appeal in rule 4(b) is jurisdictional.").    More

6    recently, however, we have noted that a series of Supreme Court

7    decisions has "called into question" our previous statements

8    regarding the jurisdictional nature of Rule 4(b).   United States

9    v. Moreno-Rivera, 472 F.3d 49, 50 n.2 (2d Cir. 2006) (per

10   curiam).   As explained below, we now conclude that Rule 4(b) is

11   not jurisdictional and that we may therefore consider Frias's

12   appeal on its merits.3

13              In Kontrick v. Ryan, 540 U.S. 443 (2004), the Supreme

14   Court held that Rule 4004 of the Federal Rules of Bankruptcy

15   Procedure, which sets a 60-day time limit on the right of a

16   creditor to file a complaint objecting to a debtor's discharge,

17   is not jurisdictional.   Id. at 447.   Because "[o]nly Congress may

18   determine a lower federal court's subject-matter jurisdiction,"


                notice –- extend the time to file a notice of
                appeal for a period not to exceed 30 days
                from the expiration of the time otherwise
                prescribed by this Rule 4(b).

          3
             "[W]e are bound by the decisions of prior panels until
     such time as they are overruled either by an en banc panel of our
     Court or by the Supreme Court." United States v. Brutus, 505
     F.3d 80, 87 n.5 (2d Cir. 2007) (internal quotation marks and
     citation omitted). Although we conclude that the prior rulings
     of this Court on this issue have been effectively overruled by
     the Supreme Court in the cited cases, we have nonetheless taken
     the precaution of circulating this opinion to all active members
     of this court before filing. See id.
                                     5
1    id. at 452, the Court reasoned that time limits and filing

2    deadlines originating only in the Bankruptcy Rules, and not in

3    the United States Code, "are claim-processing rules that do not

4    delineate what cases bankruptcy courts are competent to

5    adjudicate," id. at 454.   The Court acknowledged that it had

6    sometimes misused the term "jurisdictional" to describe claim-

7    processing rules that are mandatory or inflexible.     Id. at 454-

8    55.   The distinction is important, however, because

 9              [c]haracteristically, a court's subject-
10              matter jurisdiction cannot be expanded to
11              account for the parties' litigation conduct;
12              a claim-processing rule, on the other hand,
13              even if unalterable on a party's application,
14              can nonetheless be forfeited if the party
15              asserting the rule waits too long to raise
16              the point.

17   Id. at 456.

18              The Supreme Court revisited questions of subject-matter

19   jurisdiction in Eberhart v. United States, 546 U.S. 12 (2005)

20   (per curiam), and Bowles v. Russell, 127 S. Ct. 2360 (2007).    In

21   Eberhart, the Court held that Federal Rule of Criminal Procedure

22   33(a), which sets a seven-day deadline for filing a motion for

23   new trial, was virtually indistinguishable from Bankruptcy Rule

24   4004 and was therefore not jurisdictional.   Eberhart, 546 U.S. at

25   15-16, 19.    In Bowles, by contrast, the Court held that Federal

26   Rule of Appellate Procedure 4(a), which governs the time to

27   appeal in a civil case, is jurisdictional.   Bowles, 127 S. Ct. at

28   2366.

29              Bowles highlighted "the jurisdictional distinction

30   between court-promulgated rules and limits enacted by Congress."
                                     6
1    Id. at 2365.   Unlike Bankruptcy Rule 4004 and Criminal Rule

2    33(a), the Court explained, the time limit in Appellate Rule 4(a)

3    is derived from a federal statute, 28 U.S.C. § 2107(a), which

4    requires parties to file notices of appeal within 30 days of the

5    entry of the judgment.4   Id. at 2363-65.    Because the 30-day

6    limit was statutory, the Court reasoned, it was properly

7    construed as jurisdictional.   Id. at 2365.

8              The Bowles Court addressed the jurisdictional status of

9    Rule 4(a), which provides the time limit for appealing from a

10   civil judgment.   It was not called upon to discuss Rule 4(b), the

11   time for appealing in a criminal case.      Several of our sister

12   circuits, applying the principles announced in Kontrick, have

13   concluded that Rule 4(b), unlike Rule 4(a), is not

14   jurisdictional.   See United States v. Garduño, 506 F.3d 1287,

15   1288 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387,

16   388 (5th Cir.) (per curiam), cert. denied, 128 S. Ct. 728 (2007);

17   United States v. Sadler, 480 F.3d 932, 934 (9th Cir. 2007).       We

18   share their view.

19             As noted, critical to the Supreme Court's decisions in

20   Kontrick and Bowles were the facts that Appellate Rule 4(a)'s

21   origin is statutory whereas Bankruptcy Rule 4004's is not.        See

22   Bowles, 127 S. Ct. at 2364-65; Kontrick, 540 U.S. at 452-54; see

          4
             Section 2107(a) provides, "Except as otherwise provided
     in this section, no appeal shall bring any judgment, order or
     decree in an action, suit or proceeding of a civil nature before
     a court of appeals for review unless notice of appeal is filed,
     within thirty days after the entry of such judgment, order or
     decree." 28 U.S.C. § 2107(a).

                                      7
1    also Grullon v. Mukasey, 509 F.3d 107, 112 (2d Cir. 2007)

2    ("Bowles emphasized repeatedly that its reasoning was based on

3    the statutory origin of the limitation . . . .").       "'It is

4    axiomatic'" that court-prescribed rules of practice and

5    procedure, as opposed to statutory time limits, "'do not create

6    or withdraw federal jurisdiction.'"       Kontrick, 540 U.S. at 452

7    (brackets omitted) (quoting Owen Equip. & Erection Co. v. Kroger,

8    437 U.S. 365, 370 (1978)).   Appellate Rule 4(b), like Bankruptcy

9    Rule 4004, is not based on a statutory prescription.       As the

10   historical and statutory notes to 28 U.S.C. § 2107 indicate, the

11   time to file a notice of appeal in both civil and criminal cases

12   was governed by a single statute until 1948, when Congress

13   amended it to cover only civil actions.       See Act of June 25,

14   1948, ch. 646, § 2107, 62 Stat. 869, 963 (codified as amended at

15   28 U.S.C. § 2107).   For criminal cases, the time limit was then

16   set forth in Federal Rule of Criminal Procedure 37(a), and is now

17   covered by Federal Rule of Appellate Procedure 4(b).       See 18

18   U.S.C. § 3732.   The time to appeal a criminal judgment,

19   therefore, is set forth only in a court-prescribed rule of

20   appellate procedure.   Rule 4(b), unlike Rule 4(a), is not

21   grounded in any federal statute.       Accord Garduño, 506 F.3d at

22   1290; Martinez, 496 F.3d at 388; Sadler, 480 F.3d at 938.         It

23   therefore does not withdraw federal jurisdiction over criminal

24   appeals.

25              United States v. Robinson, 361 U.S. 220 (1960), does

26   not require us to conclude otherwise.       Although Robinson, a

                                        8
1    criminal case, states that "the taking of an appeal within the

2    prescribed time is mandatory and jurisdictional," id. at 229, the

3    Supreme Court subsequently cited Robinson "as an example of when

4    [it had] been 'less than meticulous' in [its] use of the word

5    'jurisdictional.'"    Eberhart, 546 U.S. at 18 (quoting Kontrick,

6    540 U.S. at 454).    And in Robinson, unlike in this case, the

7    government moved to dismiss the defendants' appeals as untimely.

8    Robinson, 361 U.S. at 221.    As the Court explained in Eberhart:

 9             Robinson is correct not because the District
10             Court lacked subject-matter jurisdiction, but
11             because district courts must observe the
12             clear limits of the Rules . . . when they are
13             properly invoked. This does not mean that
14             [time] limits . . . are not forfeitable when
15             they are not properly invoked.

16   546 U.S. at 17 (italics in original).

17             Our determination that Rule 4(b) is not jurisdictional,

18   then, does not authorize courts to disregard it when it is

19   raised.   When the government properly objects to the untimeliness

20   of a defendant's criminal appeal, Rule 4(b) is mandatory and

21   inflexible.   See Eberhart, 546 U.S. at 17-18; Moreno-Rivera, 472

22   F.3d at 50 n.2; see also United States v. Singletary, 471 F.3d

23   193, 196 (D.C. Cir. 2006).5   But Rule 4(b), even when properly

24   invoked, does not deprive us of subject-matter jurisdiction over

25   the appeal.   See Kontrick, 540 U.S. at 455 ("Clarity would be

26   facilitated if courts and litigants used the label

27   'jurisdictional' not for claim-processing rules, but only for


          5
            We need not decide whether a court may, in its discretion,
     dismiss sua sponte an untimely appeal even when the government
     fails to invoke Rule 4(b).
                                     9
1    prescriptions delineating the classes of cases (subject-matter

2    jurisdiction) and the persons (personal jurisdiction) falling

3    within a court's adjudicatory authority.").   And where, as here,

4    the government forfeits an objection to the untimeliness of a

5    defendant's appeal by failing to raise it, we act within our

6    jurisdiction when we decide to consider the appeal as though it

7    were timely filed.

8                                   III.

9              Having considered at the outset, as we are required to

10   do, whether we have jurisdiction, we proceed to consideration of

11   the appeal on its merits.   We conclude that Frias is not entitled

12   to relief.

13             First, we reject Frias's challenges to the jury

14   instructions used at his trial, the district court's Sentencing

15   Guidelines calculations, and the findings of fact underlying

16   those calculations.   This is Frias's second appeal.   With the

17   exception of the issue of sentencing post-Booker, we resolved the

18   merits of his appeal in Frias I.   See Frias I, slip op. at 2-3.

19   The scope of this second appeal is limited by the "law of the

20   case" doctrine.

21             The law of the case ordinarily forecloses
22             relitigation of issues expressly or impliedly
23             decided by the appellate court. And where an
24             issue was ripe for review at the time of an
25             initial appeal but was nonetheless foregone,
26             it is considered waived and the law of the
27             case doctrine bars the district court on
28             remand and an appellate court in a subsequent
29             appeal from reopening such issues unless the
30             mandate can reasonably be understood as
31             permitting it to do so. . . . For similar
32             reasons, . . . the law of the case ordinarily
                                     10
1              prohibits a party, upon resentencing or an
2              appeal from that resentencing, from raising
3              issues that he or she waived by not
4              litigating them at the time of the initial
5              sentencing.

6    United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002)

7    (internal quotation marks, citations, and footnote omitted),

8    cert. denied sub nom. Donato v. United States, 539 U.S. 902

9    (2003).

10             Because we affirmed Frias's conviction in Frias I,

11   Frias cannot now claim error in the jury instructions.    Our

12   remand was limited to resentencing in light of United States v.

13   Booker, 543 U.S. 220 (2005), which declared the Sentencing

14   Guidelines advisory.   Therefore, we will not consider Frias's

15   challenge to the district court's Sentencing Guidelines

16   calculations or to the findings of fact underlying those

17   calculations.   See United States v. Williams, 475 F.3d 468, 475-

18   76 (2d Cir. 2007), cert. denied, 128 S. Ct. 881 (2008);

19   Quintieri, 306 F.3d at 1229.6

20             We will, however, examine Frias's challenge to the

21   sufficiency of the indictment insofar as he asserts that it

22   "fails to invoke the court's jurisdiction or to state an



          6
             The law of the case doctrine admits of certain exceptions
     –- for example, when the appellant did not previously have an
     incentive or opportunity to raise the issue; when the issue
     arises from events that occurred after the original appeal; or in
     light of other "cogent and compelling reasons such as an
     intervening change of controlling law, the availability of new
     evidence, or the need to correct a clear error or prevent
     manifest injustice." Quintieri, 306 F.3d at 1230 (internal
     quotation marks and citation omitted). Those exceptions do not
     apply here.
                                     11
1    offense."    The Federal Rules of Criminal Procedure provide that

2    such a challenge may be heard "at any time while the case is

3    pending."    Fed. R. Crim. P. 12(b)(3)(B).   "At the same time,

4    however, when a challenge is urged for the first time on appeal,

5    indictments and informations are construed more liberally and

6    every intendment is then indulged in support of the sufficiency."

7    United States v. Davila, 461 F.3d 298, 308 (2d Cir. 2006)

8    (internal quotation marks, citation, and ellipsis omitted), cert.

9    denied, 127 S. Ct. 1485 (2007).    Typically, to state an offense,

10   an indictment "need only track the language of the statute and,

11   if necessary to apprise the defendant of the nature of the

12   accusation against him, state time and place in approximate

13   terms."   United States v. Flaharty, 295 F.3d 182, 198 (2d Cir.)

14   (internal quotation marks, citation, and ellipsis omitted), cert.

15   denied, 537 U.S. 936 (2002).

16               The grand jury charged Frias with violating 21 U.S.C.

17   § 848(e)(1)(A), which provides in relevant part as follows:

18               [A]ny person . . . engaging in an offense
19               punishable under section 841(b)(1)(A) of this
20               title . . . who intentionally kills or
21               counsels, commands, induces, procures, or
22               causes the intentional killing of an
23               individual and such killing results, shall be
24               sentenced to any term of imprisonment, which
25               shall not be less than 20 years, and which
26               may be up to life imprisonment, or may be
27               sentenced to death.

28   The indictment against Frias charges:

29               On or about September 21, 1991, in the
30               Southern District of New York, while engaged
31               in an offense punishable under Section
32               841(b)(1)(A) of Title 21, United States Code,
33               namely, a conspiracy to distribute and
                                       12
 1             possess with intent to distribute one
 2             kilogram and more of heroin and five
 3             kilograms and more of cocaine, OCTAVIO FRIAS,
 4             the defendant, and others known and unknown,
 5             unlawfully, intentionally, and knowingly
 6             killed, counseled, commanded, induced,
 7             procured and caused the intentional killing
 8             of Mario Lobo, a/k/a, "Alberto Cruz," in a
 9             restaurant located at 1490 St. Nicholas
10             Avenue in Manhattan.

11   United States v. Frias, No. 01 Cr. 307, Superseding Indictment,

12   dated January 2, 2003.   The indictment plainly tracks the

13   language of the statute and states the time and place of the

14   alleged murder.   It was therefore sufficient to invoke the

15   district court's jurisdiction and to state an offense.

16             Last, we conclude that the district court's sentence on

17   remand was reasonable.   In imposing a sentence, the district

18   court is required to consider, among other things, "the need to

19   avoid unwarranted sentence disparities among defendants with

20   similar records who have been found guilty of similar conduct."

21   18 U.S.C. § 3553(a)(6); see Kimbrough v. United States, 128 S.

22   Ct. 558, 574 (2007).   Frias argues that his sentence was

23   unreasonable because he received a life sentence whereas his co-

24   defendant, Martinez-Martinez, was equally culpable and received a

25   sentence of only 25 years.7   This argument is unavailing.    We

26   have held that section 3553(a)(6) requires a district court to

27   consider nationwide sentence disparities, but does not require a


          7
            We note that Frias preserved this issue below but did not
     raise it on appeal until he filed a reply brief. We exercise our
     discretion to consider the claim because it was fully briefed and
     argued before the district court and because the government
     addressed generally the reasonableness of Frias's sentence in its
     own brief on appeal.
                                     13
1    district court to consider disparities between co-defendants.

2    United States v. Wills, 476 F.3d 103, 109-11 (2d Cir. 2007).8     In

3    any event, Frias and Martinez-Martinez are not similarly

4    situated.   One highly relevant difference between them is that

5    Martinez-Martinez pleaded guilty to two counts that carried a

6    statutory maximum sentence of 25 years, whereas Frias's offense

7    of conviction carries a statutory range of 20 years to life and a

8    Guidelines sentence of life.   "[I]n the overwhelming majority of

9    cases, a Guidelines sentence will fall comfortably within the

10   broad range of sentences that would be reasonable . . . ."

11   United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.), cert.

12   denied, 127 S. Ct. 192 (2006).    We conclude that Frias's sentence

13   of life imprisonment for conspiracy to commit murder in violation

14   of 21 U.S.C. § 848(e)(1)(A) in connection with a narcotics

15   offense punishable under 21 U.S.C. § 841(b)(1)(A) falls

16   comfortably within that range.

17                                    * * *

18               For the foregoing reasons, the amended judgment of the

19   district court is affirmed.




          8
            "We do not, as a general matter, object to district
     courts' consideration of similarities and differences among
     co-defendants when imposing a sentence." Wills, 476 F.3d at 110.

                                       14
