                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2007

USA v. Higgs
Precedential or Non-Precedential: Precedential

Docket No. 06-3738




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 06-3738


              UNITED STATES OF AMERICA

                               v.

                      CHARLES HIGGS,
                       agent of GOLDIE

                         Charles Higgs,
                                  Appellant


       On Appeal from the United States District Court
                 for the District of New Jersey
                (D.C. Crim. No. 04-cr-00554-2)
    District Judge: Hon. Garrett E. Brown, Jr., Chief Judge


          Submitted Under Third Circuit LAR 34.1(a)
                     September 17, 2007

    Before: SLOVITER, SMITH, and WEIS, Circuit Judges

                    (Filed October 4, 2007)


John S. Furlong
Furlong & Krasny
West Trenton, NJ 08628

      Attorney for Appellant

George S. Leone
Office of United States Attorney
Newark, NJ 07102
John J. Hoffman
Office of United States Attorney
Trenton, NJ 08608

       Attorneys for Appellee


                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

       This court has an obligation to inquire sua sponte into its
own jurisdiction and, necessarily, into the jurisdiction of the
District Court to enter the order on appeal. In the case before us,
defendant Charles Higgs appeals from the order of the District
Court denying his motion for reduction of sentence under Rule
35(a) of the Federal Rules of Criminal Procedure. For the
reasons set forth below in some detail, we conclude that the
District Court lacked jurisdiction to enter the order.

                                I.

        On October 29, 2004, Higgs waived indictment and pled
guilty to a one-count information charging him with knowingly
and intentionally conspiring with others to distribute and possess
with intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. In
his plea agreement, Higgs also stipulated to having possessed a
firearm in connection with drug trafficking.

       The District Court found, and both parties agreed, that
Higgs’ adjusted offense level was 31 and his criminal history
category was IV. This resulted in a guidelines range of 151 to
188 months. On January 5, 2005, the District Court held a
sentencing hearing and sentenced Higgs to 156 months
imprisonment, along with five years of supervised release and a
$3,500 fine. The sentencing took place one week before the
Supreme Court’s watershed decision in United States v. Booker,
543 U.S. 220 (2005), announced January 12, 2005. Judgment on
Higgs’ sentence was entered on January 14, 2005.

                                 2
       Rather than file a direct appeal with this court, Higgs
chose, also on January 14, 2005, to move for a reduction of his
sentence under Rule 35(a) which provides, “Correcting Clear
Error. Within 7 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other clear
error.” Appended to the motion was an Affidavit of counsel
which noted the recent decision in Booker and its companion
case, United States v. Fanfan, which made the Guidelines
advisory. The affidavit concluded that “[u]nder these
constitutional circumstances, defendant respectfully requests this
Court review his sentence under Booker and Fanfan and make an
independent determination of the propriety of his sentence,
subject to the reasonableness standard articulated in United
States v. Fanfan.” App. at 21.

        On January 24, 2005, ten days after the motion was filed,
the District Court conducted a telephone conference on the
motion, at which Higgs was not present. The Court stated that,
in light of Booker, “we, of course, have guidelines . . . that are
not dispositive.” App at 43. The Court then proceeded to
consider a number of factors, including Higgs’ criminal history.
The Court noted that Higgs was “a 26 year old male making his
eighth appearance before the court for sentencing on a criminal
matter, and [h]e had four misdemeanors which contributed no
points toward the criminal history calculation, and someone who
has spent a substantial portion of his, young adult life, in custody
and has embroiled himself in a drug conspiracy within a year of
release from state custody for distribution of cocaine . . . .” App.
at 43. The Court also noted that Higgs’ “employment history
was virtually nonexistent, despite having graduated from high
school.” App. at 43. The Court stated, “[h]e seems to have
gotten a substantial amount of money from drug dealing. His
criminal record is significant, and his drug dealings are
significant as well.” App. at 43-44. The Court concluded that,
“considering all of the factors set forth in the pre-sentence report
and all of those enumerated in the purposes of sentencing,” the
pronounced sentence of 13 years was “reasonable, in light of the
Supreme Court’s determination.” App. at 44. On January 25,
2005, the District Court entered its order denying Higgs’ motion
to reduce his sentence, leaving his 156-month prison term intact.


                                 3
        In a letter dated February 3, 2005, counsel for Higgs
informed the District Court that Higgs had “heard of [the District
Court’s] denial of his motion for reduction of sentence, and he
immediately expressed a desire to appeal.” App. at 2. The
District Court received Higgs’ hand-written notice of appeal on
April 29, 2005. On January 26, 2006, we remanded Higgs’
appeal to the District Court to determine whether counsel’s
letter, which was not filed until February 8, 2006, should be
construed as a notice of appeal. The District Court granted
Higgs’ motion “for leave to appeal the Court’s order denying his
motion for reconsideration of sentence nunc pro tunc . . . to
February 5, 2005.” App. at 1.

                               II.

        Higgs argues on appeal that the District Court erred in
entertaining and ruling upon his Rule 35(a) motion outside of his
presence and without giving him an opportunity to file a brief.
We have jurisdiction over this appeal pursuant to both 28 U.S.C.
§ 1291, which provides for review of final decisions of the
district courts, and 18 U.S.C. § 3742(a)(1), which provides for
review of final sentences allegedly imposed in violation of the
law.

        Rule 35(a) requires that any correction for “clear error”
be made “[w]ithin 7 days after sentencing,” with sentencing
defined by Rule 35(c) as “the oral announcement of the
sentence” (and not the entry of judgment). Following briefing in
this action, we asked the parties to advise this court of their
views as to whether the time limitations in Rule 35(a) are
jurisdictional. As the parties have recognized, the District
Court’s disposition of the Rule 35(a) motion was not timely,
because it occurred beyond the seven-day time limit for action
imposed by Rule 35(a).

        We recognize that the consequences of following this rule
seem to be harsh. After all, counsel filed the Rule 35(a) motion
within seven days of the sentencing hearing, the time limit set
forth in the Rule. However, the seven-day limit in the Rule does
not apply to counsel’s motion. It is expressly in terms of the
District Court’s action. A review of the Advisory Committee’s

                                4
notes shows that this was deliberate. 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. Fed. R. Crim. P. 35 advisory committee’s note. The
strict application of Rule 35 is reinforced by Rule 45, which
provides that “[t]he court may not extend the time to take any
action under Rule 35, except as stated in that rule.” Fed. R.
Crim. P. 45(b)(2). Indeed, the Sentencing Reform Act provides
that “[t]he court may not modify a term of imprisonment once it
is imposed except that . . . the court may modify an imposed
term of imprisonment to the extent otherwise expressly
permitted . . . by Rule 35 of the Federal Rules of Criminal
Procedure . . . .” 18 U.S.C. § 3582(c).

        In order to decide whether we have any latitude with
respect to application of Rule 35’s seven-day time limit, we must
consider whether the seven-day period is jurisdictional. In
United States v. Addonizio, 442 U.S. 178 (1979), the Supreme
Court held that prisoners could not bring a collateral attack under
28 U.S.C. § 2255 on the ground that a postsentencing change in
the policies of the United States Parole Commission prolonged
their actual imprisonment beyond that intended by the
sentencing judge. The Court recognized that Rule 35 authorized
the trial court to reduce a sentence but it noted that the Rule
(referring to prior Rule 35(b), see infra p. 6-7) included a time
limit of 120 days after sentence was imposed or after it was
affirmed on appeal. Id. at 189. The Court added, significantly
for our purposes, “[t]he time period . . . is jurisdictional and may
not be extended.” Id. at 189 & n.17 (citing Fed. R. Crim. P.
45(b)).

                                III.

       We turn to examine the history and purposes of Rule 35,
as they are relevant to our determination whether Rule 35(a)’s
seven-day time limit is jurisdictional. Rule 35 has been amended
several times from 1979 until the present. In its original form,
Rule 35 had three distinct components: (1) it delineated a


                                 5
procedure to correct an “illegal” sentence;1 (2) it provided a
remedy to correct an “illegally imposed” sentence;2 and (3) it
authorized the court to reduce a lawfully imposed sentence, “if,
on further reflection, the court believed that it had been unduly
harsh.” 3 Charles Alan Wright, Nancy J. King & Susan R.
Klein, Federal Practice and Procedure (Criminal) § 581, at 626
(3d ed. 2004). Under that “original” Rule 35, an illegal sentence
could be corrected at any time, whereas a sentence imposed in an
illegal manner had to be corrected within 120 days. See id. at
624 n.1.3

       Specifically, “original” Rule 35 contained two sub-
sections. Subsection (a) provided that a court could correct an
“illegal sentence” at any time and could correct a “sentence
imposed in an illegal manner” within the period of time provided
in subsection (b), that is, 120 days. See id. at 625 n.4.
Subsection (b) provided in principal part that either party could
make a motion, or the court could act on its own, to reduce the
sentence imposed, as long as it did so within 120 days of
sentencing. See id. at 625 n.4.
       It was this “original” form of Rule 35 which the Supreme
Court analyzed in Addonizio, referred to above. More
specifically, the Court analyzed Rule 35(b), although it is
important to realize that at the time Addonizio was decided,
subsection (b) provided much broader relief than it does today

       1
        “Illegal sentences” included those that were “in excess of
the statutory maximum or otherwise unauthorized by statute,
sentences that did not conform to the oral pronouncement of
sentence, or sentences that were ambiguous with respect to the time
and manner of service.” 3 Charles Alan Wright, Nancy J. King &
Susan R. Klein, Federal Practice and Procedure (Criminal) § 582,
at 628-32 (3d ed. 2004).
       2
        An “illegally imposed sentence” was one in which a
defendant could raise a claim of error in the sentencing process. 3
Wright, King & Klein, supra, § 585, at 637.
       3
          The 120-day provision was established in 1966. Prior to
that, a sentence had to be corrected within 60 days. See 3 Wright,
King & Klein, supra, at 624 n.1.

                                6
because it did not require the government to make a motion to
reduce the sentence. Thus, the analysis in Addonizio is still
relevant to our inquiry because at the time it was decided,
subsection (b) addressed more broadly the district court’s power
to change a sentence after it was imposed. See 3 Wright, King
& Klein, supra, § 581, at 626-27.

        Coinciding with the enactment of the Sentencing Reform
Act and adoption of the United States Sentencing Guidelines,
Rule 35 was rewritten, effective November 1, 1987. See id. §
581, at 627. Subsection (a), which had provided that an illegal
sentence could be corrected at any time and an illegally imposed
sentenced could be corrected within 120 days of sentencing, was
amended to provide that “‘[t]he court shall correct a sentence
that is determined on appeal under 18 U.S.C. 3742 to have been
imposed in violation of law . . . upon remand of the case to the
court . . . .’” See United States v. Rico, 902 F.2d 1065, 1067 (2d
Cir. 1990) (quoting Rule 35(a) as amended in 1987). Subsection
(b) was also changed in 1987 to provide that a sentence could be
reduced only upon a government motion made within one year
of sentencing, or, under a 1991 amendment to Rule 35, later than
one year after sentencing if certain requirements were met. See
3 Wright, King & Klein, supra, § 585.1, at 639-46.

        For several years following the 1987 amendments, there
was a period of confusion among courts regarding whether the
time limitations and other restrictions that had been added to the
Rule were jurisdictional, that is, whether those limitations now
restricted courts from correcting illegal sentences at any time.4
Although the Rule itself imposed limitations, some courts
continued to hold that district courts could correct illegal
sentences at any time, and thus did not consider those limitations
to be jurisdictional. See Rico, 902 F.2d at 1069 (holding that
“the district court has inherent power to correct a mistaken


       4
          The distinction between an “illegal” sentence and an
“illegally imposed” sentence lost importance after the 1987
amendments, as defendants lost the ability to seek correction of an
illegally imposed sentence under Rule 35. See Wright, King &
Klein, supra, § 585, at 638-39; see also Rico, 902 F.2d at 1067.

                                7
sentence within the time fixed for filing an appeal, where the
parties had agreed to a different sentence and the court otherwise
intended to abide by the agreement”); United States v. Cook, 890
F.2d 672, 675 (4th Cir. 1989) (holding that a district court
maintains power to correct an “acknowledged and obvious
mistake”). See also 3 Wright, King & Klein, supra, § 585.2, at
646.

        The Advisory Committee notes explain that a new
provision, previously non-existent subsection (c), was added to
Rule 35 in 1991 to address that problem.5 According to a note of
the Advisory Committee, “Subdivision (c) [wa]s intended to
adopt, in part, a suggestion from the Federal Courts Study
Committee 1990 that Rule 35 be amended to recognize explicitly
the ability of the sentencing court to correct a sentence imposed
as a result of an obvious arithmetical, technical or other clear
error, if the error is discovered shortly after the sentence is
imposed.” Fed. R. Crim. P. 35 advisory committee’s note. The
note states that the purpose of subsection (c) was to “codif[y] the
result in [Rico and Cook]” but to provide “a more stringent time
requirement.” Id.; see also 3 Wright, King & Klein, supra, §
581, at 628 (explaining that subsection (c) was a “very narrow
provision”). In other words, subsection (c) reinforced that a
district court has authority to correct a sentence, but that
authority is limited.

       The purposes of the Rule’s temporal limitation are
particularly relevant to our discussion. Importantly, “[t]he
Committee believed that the time for correcting such errors
should be narrowed within the time for appealing the sentence to


       5
         Subsection (c) as added in 1991 is substantively the same
text as that now contained in subsection (a), which is the focus of
our discussion. In 2002, Rule 35 was amended again. Although
the text contained in subsection (c) was not substantively changed,
it was moved to subsection (a), when the previous subsection (a)
was deleted. See Wright, King & Klein, supra, § 581, at 628.
Thus, when we discuss the history of subsection (c) throughout our
analysis, we are referring to the statutory text at issue in this
appeal.

                                8
reduce the likelihood of jurisdictional questions in the event of
an appeal and to provide the parties with an opportunity to
address the court’s correction of the sentence, or lack thereof, in
any appeal of the sentence.”6 Fed. R. Crim. P. 35 advisory
committee’s note; see also 3 Wright, King & Klein, supra, §
585.2, at 649 n.5 (explaining why, under the Rule, the district
court must act within seven days). Indeed, the note states that, in
drafting subsection (c), the Committee expressly contemplated
that the district court “would enter an order correcting the
sentence and that such order must be entered within the seven
(7) day period so that the appellate process . . . may proceed
without delay and without jurisdictional confusion.” Fed. R.
Crim. P. 35 advisory committee’s note (emphasis added). The
purpose of the seven-day time limit strongly suggests that the
Committee intended the time limit to be jurisdictional, because
the very purpose of choosing a period of time less than the time
for filing an appeal was to avoid jurisdictional conflicts between
the district and appellate courts. In addition, the note explains,
“A shorter period of time would also reduce the likelihood of
abuse of the rule by limiting its application to acknowledged and
obvious errors in sentencing.” Id.

         After the addition of subsection (c), Rule 35 provided
only three ways that a district court could change a sentence
after it had been imposed: (1) after appeal and remand
(Subsection (a)); (2) after a motion by the government to reduce
a sentence due to a defendant’s substantial assistance
(Subsection (b)); and (3) to correct a clear error, but only within
seven days of sentencing (Subsection (c)). Subsection (c) was
the only subsection that gave the district court discretion, absent
a government motion or an appeal and remand, to correct the
sentence. Thus, “[t]he authority to correct a sentence under


       6
         Pursuant to Rule 4(b)(1) of the Federal Rule of Appellate
Procedure, a defendant must file a notice of appeal in the district
court within ten days of the entry of judgment or the government’s
filing of a notice of appeal, whichever is later. Fed. R. App. P.
4(b)(1)(A). When the government is entitled to appeal, it has thirty
days from the later of the entry of judgment or the defendant’s
filing of a notice of appeal. Fed. R. App. P. 4(b)(1)(B).

                                 9
[that] subdivision [wa]s intended to be very narrow and to
extend only to those cases in which an obvious error or mistake
has occurred in the sentence . . . .” Fed. R. Crim. P. 35 advisory
committee’s note. The Advisory Committee’s note explicitly
cautions that subsection (c) was not intended to be used as a
method for reopening issues already decided, or to address
questions related to the district court’s discretion in applying the
Sentencing Guidelines. Id.; see also 3 Wright, King & Klein,
supra, § 582, at 632 (explaining that Rule 35 is “not a means of
collateral attack”).

        The Advisory Committee note explains that the addition
of subsection (c) to Rule 35 was not meant to revitalize former
subsection (a) which had granted district courts broad discretion
to correct an “illegal sentence,” but neither was it intended to
prevent a defendant from seeking relief from the imposition of
an “illegal sentence.” Rather, the drafters intended that, if a
defendant wanted to seek relief from a “plainly illegal sentence”
and the seven-day period provided for in Rule 35 had elapsed,
the defendant would seek relief under 28 U.S.C. § 2255. Fed. R.
Crim. P. 35 advisory committee’s note; see also 3 Wright, King
& Klein, supra, § 583, at 634.

        In 2002, then-existing subsection (a), which provided that
the district court could correct a sentence after an appeal and
remand, was deleted because it was redundant in light of 18
U.S.C. § 3742. See 3 Wright, King & Klein, supra, § 581, at 626
n.9. Subsection (c) was then relocated to subsection (a), which
is the version of the Rule at issue in our discussion.

        With this deeper understanding of the purpose and history
of Rule 35 in mind, we turn now to examine the decisions of the
Courts of Appeals interpreting Rule 35 following its
amendments in both 1987, which significantly changed
subsection (b), and in 1991, which added subsection (c) – that is
– the text providing that a court may correct a sentence if it acts
within seven days of sentencing. From 1991 until the present,
ten other Courts of Appeals have held that Rule 35(a)’s seven-




                                 10
day time limit is jurisdictional.7 See, e.g., United States v.
Penna, 319 F.3d 509, 510-12 (9th Cir. 2003) (holding that a
district court loses jurisdiction to act under Rule 35 after the
seven-day time limitation expires); United States v. Austin, 217
F.3d 595, 597 (8th Cir. 2000) (deciding that a district court had
no jurisdiction to alter sentence after the seven-day time limit
had expired); United States v. Werber, 51 F.3d 342, 348-49 (2d
Cir. 1995) (rejecting appellees’ argument that district court had
“inherent authority” to correct sentence at any time, explaining
that the 1991 amendments to Rule 35 imposed an absolute
seven-day time limit); United States v. Fahm, 13 F.3d 447, 453-
54 (1st Cir. 1994) (deciding that Rule 35(c)’s seven-day time
limit is jurisdictional and holding that the district court did not
have inherent authority to correct a sentence after the expiration
of that period).

        The Court of Appeals for the Fourth Circuit’s decision in
United States v. Shank, 395 F.3d 466 (4th Cir. 2005), is
instructive. In Shank, the defendant had filed a motion to correct
his sentence under former Rule 35(c), now Rule 35(a), within
seven days of sentencing. Id. at 468. The district court failed to
act on the motion within the seven days, but denied the motion
several months later. Shank appealed, arguing that “if a
defendant timely invokes Rule 35 (i.e., within seven days), the
district court is vested with jurisdiction to dispose of that motion,
regardless of how long it takes the court to do so.” Id. (internal
citations omitted). The Court of Appeals rejected that argument,
holding that Rule 35(a) “divests a district court of jurisdiction to
correct sentencing errors more than seven days after sentencing.”
Id. In reaching that conclusion, the court relied heavily upon its
analysis of the history and purposes of Rule 35, and, in
particular, the Advisory Committee note explaining that the
purpose of the seven-day rule was to allow the appellate process


       7
        For the sake of clarity, we note that with respect to those
cases decided before 2002, when the relevant statutory text was
moved from subsection (c) to subsection (a), the cases refer to the
seven-day provision as being located in subsection (c) because that
is where it was located at the time. The text itself is substantively
the same.

                                 11
to proceed without jurisdictional confusion. Id. at 469. The
court reasoned that because the time for filing an appeal expires
after ten days following sentencing, the seven-day period for
correcting a sentence “must lapse after seven days.” Id.

       This court has also held that the time limitations
proscribed by Rule 35 are jurisdictional, albeit as applied to a
prior version of Rule 35(b) rather than the provision at issue
here. In United States v. Friedland, 83 F.3d 1531, 1538 (3d Cir.
1996), defendant Friedland made a motion for a reduction of
sentence under Rule 35(b). Because Friedland committed his
offense before the 1987 amendments took effect, the prior
version of Rule 35(b), which allowed a defendant to make a
motion for reduction of sentence within 120 days of sentencing,
applied. Id. Friedland made the motion, but he did not do so
within the 120 days. We recognized, citing Addonizio, that the
120-day limit is jurisdictional and could not be extended. Id.
Friedland’s motion, therefore, was untimely.

       Moreover, in United States v. Idone, 38 F.3d 693, 698 (3d
Cir. 1994), we held, over appellant’s objection, that the 1987
amendments to Rule 35(b) did not delete its jurisdictional
requirement. We explained that the failure of a district court to
act within the requisite time was jurisdictional. Id.

        Thus, having examined the plain language of Rule 35(a)
and its interplay with both Rule 45 and Rule 4 of the Federal
Rules of Appellate Procedure, the history and purposes of Rule
35, the conceptual underpinnings of Addonizio, and the various
Court of Appeals decisions interpreting either former Rule 35(c)
or current Rule 35(a), we conclude that each of those bases
counsels in favor of holding that the seven-day time requirement
of Rule 35(a) is jurisdictional.

                               IV.

       The unanimity in strict enforcement of the seven-day time
requirement in Rule 35(a) of an order correcting a sentence must
be contrasted with the Supreme Court’s decision in Eberhart v
United States, 546 U.S. 12 (2005), which arose under Rule 33 of
the Federal Rules of Criminal Procedure. Under Rule 33(a),

                                12
          (a) Defendant’s Motion. Upon the defendant’s
       motion, the court may vacate any judgment and grant a
       new trial if the interest of justice so requires. If the case
       was tried without a jury, the court may take additional
       testimony and enter a new judgment.

The time to file a motion for new trial is governed by Rule 33(b)
which provides:

           (b) Time to File.
               (1) Newly Discovered Evidence. Any motion for a
       new trial grounded on newly discovered evidence must be
       filed within 3 years after the verdict or finding of guilty.
       If an appeal is pending, the court may not grant a motion
       for a new trial until the appellate court remands the case.
               (2) Other Grounds. Any motion for a new trial
       grounded on any reason other than newly discovered
       evidence must be filed within 7 days after the verdict or
       finding of guilty.

        In Eberhart, the Supreme Court analogized the time
limitation of Rules 33(a) and 45(b)(2), the Rule governing
motions for new trial, to the time limitations of Federal Rules of
Bankruptcy Procedure 4004 and 9006 which it had held, in
Kontrick v. Ryan, 540 U.S. 443, 456 (2004), are claims-
processing rules that can be forfeited under certain
circumstances but are not jurisdictional. 546 U.S. at 15-16. The
Court in Eberhart explained that because the particular time
limitation of Rule 33 is a claims-processing rule meant to bring a
definite end to judicial proceedings, that limitation, although
inflexible, is not jurisdictional. Id. at 19.

        Following Eberhart, the Supreme Court clarified the
distinction between claims-processing rules and jurisdictional
rules. In Bowles v. Russell, ___ U.S. ___, 127 S. Ct. 2360
(2007), the Court held that if a time limitation is set forth in a
statute, it is jurisdictional. “Jurisdictional treatment of statutory
time limits makes good sense” because it gives proper weight to
Congressional intent to decide what cases federal courts have
jurisdiction to consider. Id. at 2365. “Because only Congress
may determine a lower federal court’s subject-matter

                                 13
jurisdiction,” the critical inquiry in determining whether a
particular timing rule is jurisdictional is whether it is set forth in
a statute. Id. at 2364 (internal citations omitted).

        After the Eberhart decision, the Court of Appeals for the
Seventh Circuit held that the time limitation of Rule 35 is
jurisdictional, principally because 18 U.S.C. § 3582 limits the
substantive authority of the district courts. See United States v.
Smith, 438 F.3d 796, 799 (7th Cir. 2006). Because section 3582
sets forth a statutory basis for limiting the district courts’
jurisdiction, the Seventh Circuit concluded that the timing
requirement of Rule 35 is jurisdictional. Id. The court’s
reasoning in Smith comports with the Supreme Court’s decision
in Bowles. We agree that 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. As a result, the District Court was
without jurisdiction to enter its January 24, 2005 order denying
Higgs’ motion for reduction of sentence.

       Higgs argues that remand is required in light of United
States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc). Because
Higgs did not directly appeal the entry of judgment, but instead
appealed the order denying his motion under Rule 35(a), we will
not remand for resentencing. The District Court’s judgment and
sentence remain intact, notwithstanding our vacatur of the
January 24 order.8

      For the reasons set forth, we will vacate the order dated
January 24, 2005, and dismiss the appeal.




       8
        We note that our decision leaves open the question whether
Higgs’ counsel’s decision to file a Rule 35 motion, rather than
directly appealing Higgs’ sentence, gives rise to a valid ineffective
assistance of counsel claim under 18 U.S.C. § 2255. We do not
decide that issue, which is not before us.

                                  14
