                                     In the

        United States Court of Appeals
                      For the Seventh Circuit

No. 13-2677

UNITED STATES OF AMERICA,
                                                          Plaintiff-Appellee,

                                        v.

LOUIS TOWNSEND,
                                                      Defendant-Appellant.


                 Appeal from the United States District Court
             for the Northern District of Illinois, Eastern Division.
                 No. 12 CR 357-1 — Edmond E. Chang, Judge.



       ARGUED JANUARY 9, 2014 — DECIDED AUGUST 12, 2014



   Before MANION and SYKES, Circuit Judges, and GRIESBACH,
District Judge.*
   SYKES, Circuit Judge. Louis Townsend pleaded guilty to
possessing a firearm as a felon and was sentenced to 71 months


*
    Chief Judge of the Eastern District of Wisconsin, sitting by designation.
2                                                  No. 13-2677

in prison. He challenges his sentence on several grounds, but
the government questions whether the appeal is timely.
Townsend’s deadline for filing a notice of appeal was July 22,
2013. On July 17 he filed a motion titled “Defendant Louis
Townsend’s Motion to Reconsider His Sentence.” By statute a
motion for sentence modification must be brought under
Rule 35 of the Federal Rules of Criminal Procedure, and
motions under that rule don’t extend the time for filing an
appeal. So the due date for Townsend’s appeal remained
unchanged notwithstanding the motion.
   The district court denied reconsideration on July 19.
Townsend filed his notice of appeal on July 30. That was eight
days too late, so we dismiss the appeal as untimely.


                        I. Background
    Late one evening in November 2011, Chicago police officers
spotted Townsend walking in an alley with a visible handgun
tucked in his waistband. When Townsend saw the officers, he
tossed the gun on the ground next to a fence. At the time
Townsend was on parole, having been released early from a
lengthy sentence for a murder he committed in 1996. He also
had several other convictions for weapons offenses and crimes
of violence. Police retrieved the discarded gun—a loaded
Smith & Wesson .38 Special—and found additional ammuni-
tion in Townsend’s pants pocket. The case was referred to
federal authorities.
    Townsend was indicted for possessing a firearm as a felon
in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty. At the
No. 13-2677                                                     3

initial sentencing hearing, the government called two of the
arresting officers to establish a factual basis for application of
a four-level guidelines enhancement for possessing a firearm
“in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B). Officers Hanrahan and Staunton testified that
after administering Miranda warnings, they questioned
Townsend about the gun, and he told them that he planned to
rob someone on the street. Based on this testimony, the
government asked the judge to apply the four-level enhance-
ment under § 2K2.1(b)(6)(B). Townsend objected. The judge
deferred a ruling on the issue and continued the hearing.
    In the meantime, the government informed the court in
writing that it did not intend to call Officer Murphy, a third
officer who had participated in Townsend’s arrest. The
government reiterated this point at the next hearing. Discus-
sion ensued about the need for the third officer’s testimony,
but the matter was not resolved. The judge again continued the
proceedings to give Townsend an opportunity to subpoena
Officer Murphy if he wished.
    Anticipating that Townsend might call Officer Murphy
when sentencing resumed, the government filed a sealed “Ex
Parte Submission Regarding Anticipated Evidence at Sentenc-
ing.” This filing informed the court that Officer Murphy would
not offer any testimony favorable to the defense and explained
that Townsend might be calling him for the sole purpose of
impeaching him with a district-court opinion issued in another
case. In that opinion, a different judge in the Northern District
of Illinois determined that Murphy had “acted with reckless
disregard for the truth” when securing a search warrant from
4                                                    No. 13-2677

a state judge. United States v. Simmons, 771 F. Supp. 2d 908,
920–21 (N.D. Ill. 2011). Because Townsend—not the govern-
ment—planned to call Officer Murphy, and because Murphy
had no exculpatory testimony to offer, the government asked
the court to issue a sealed, ex parte order declaring that the
government had no duty to disclose the Simmons case to the
defense. Although the Simmons decision was in the public
domain and readily available, the court agreed to issue the
order.
    When sentencing resumed, the government again dis-
avowed any intent to call Officer Murphy to testify and
advised the court that if Townsend did so, the government
would not rely on the officer’s testimony even if it was favor-
able to the prosecution. By this time the government had
repeatedly informed Townsend that Murphy had nothing
favorable to say for the defense. Townsend called him anyway,
to no avail: Officer Murphy’s testimony was entirely consistent
with that of his fellow officers. The judge applied the four-level
enhancement under § 2K2.1(b)(6)(B) after concluding that the
testimony of the government’s witnesses alone—Officers
Hanrahan and Staunton—was sufficient to support it.
   With the enhancement, Townsend’s offense level was 21.
When combined with a criminal history category III, the
guidelines range was 46 to 57 months. The judge concluded
that the range understated the risk that Townsend posed to the
public. Among other things, the judge was troubled by
Townsend’s juvenile record, which included a delinquency
adjudication for shooting a person in the stomach. The judge
No. 13-2677                                                    5

eventually settled on an above-guidelines sentence of
71 months.
   In doing so, the judge rejected Townsend’s argument that
the conditions of his pretrial confinement were so harsh as to
warrant a reduction in his total sentence. Townsend com-
plained that it took jail officials more than four months to
authorize surgery to repair his torn Achilles tendon. He
maintained that the delay inhibited his ability to fully recover
once the surgery was performed. The judge found this argu-
ment implausible as a basis for a lower sentence, holding that
even if jail officials had dragged their feet in treating
Townsend’s injury, their conduct did not justify a lower
sentence.
    Townsend was sentenced on July 1, 2012. Shortly thereafter,
the government alerted the defense to the Simmons case. On
July 17 Townsend filed a motion for reconsideration of his
sentence, arguing that the government breached its Giglio
obligations by failing to disclose the Simmons case, which might
have been used to impeach Officer Murphy. See Giglio v. United
States, 405 U.S. 150 (1982).
    Two days later the judge denied the motion as untimely
under Rule 35 of the Federal Rules of Criminal Procedure,
which allows sentence modification only in very limited
circumstances and then only within the 14-day period follow-
ing oral pronouncement of the sentence. The 14-day window
had closed by the time Townsend filed his motion. The judge
also noted that even if the motion had been timely, it was
plainly meritless: The Simmons case only affected the credibility
of Officer Murphy, who was called by the defense, and anyway
6                                                          No. 13-2677

the court had relied solely on the unaffected testimony of the
other two officers in applying the enhancement under
§ 2K2.1(b)(6)(B). As an aside, the judge remarked on the “non-
confidential nature of the negative credibility information”
about Officer Murphy and suggested that the “better practice”
would have been to alert the defense to the Simmons decision
and then move in limine to preclude its use.
    Townsend filed his notice of appeal on July 30.


                            II. Discussion
   Townsend challenges the denial of his motion for reconsid-
eration and raises several other claims of error regarding his
sentence—namely, the judge’s rejection of his argument about
conditions of pretrial confinement and reliance on his juvenile
adjudication for shooting someone in the stomach. A threshold
question, however, is whether Townsend’s notice of appeal
was timely filed. The government says it was not: The judg-
ment was entered on July 8,1 and the appeal wasn’t noticed
until July 30. Townsend had 14 days after the entry of the
judgment to file a notice of appeal. FED. R. APP. P. 4(b)(1)(A).
This 14-day deadline is not jurisdictional, but it is mandatory
and therefore must be enforced if the argument isn’t waived.
United States v. Rollins, 607 F.3d 500, 501 (7th Cir. 2010).


1
 There is some disagreement as to when the order was actually entered.
The judgment was signed and dated July 3, but the docket can be read to
suggest that it was entered on July 8. This disagreement makes no
difference in this appeal, so we will assume that the judgment was entered
on July 8.
No. 13-2677                                                   7

    Townsend counters that the 14-day deadline should be
calculated from July 19, the date the court denied his motion
for reconsideration, rather than July 8, the date judgment was
entered. This argument presupposes that a motion for recon-
sideration suspends the time limit for appeal. No federal rule
or statute allows a motion to reconsider in a criminal case, but
reconsideration motions are accepted as a common-law
practice. See, e.g., United States v. Healy, 376 U.S. 75, 79–80
(1964). If a common-law motion for reconsideration is filed
within the time ordinarily given for noticing an appeal, the
motion is considered timely and renders the court’s initial
judgment nonfinal. See id. at 78–79. Thus, there is no final
judgment until the court rules on the motion for reconsidera-
tion, which opens a new window for an appeal. See Rollins,
607 F.3d at 502–04.
    But Congress long ago abrogated this common-law practice
in the sentencing context. The Sentencing Reform Act of 1984
explicitly prevents district courts from “modify[ing] a term of
imprisonment once it has been imposed” except in three
narrow situations. 18 U.S.C. § 3582(c). Two of the exceptions
are irrelevant here; one requires a motion from the Bureau of
Prisons, § 3582(c)(1)(A), and the other a change in the applica-
ble sentencing guidelines, § 3582(c)(2). The remaining excep-
tion applies more generally but is restrictive in nature: The
court may modify a sentence only to the extent “expressly
permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure.” § 3582(c)(1)(B).
    Sentence modification under Rule 35 is extremely limited.
In the absence of a motion from the government, the court has
8                                                      No. 13-2677

authority to modify a sentence only if the sentence originally
imposed “resulted from arithmetical, technical, or other clear
error,” and even then the court must act within 14 days after
the sentence is orally announced. FED. R. CRIM. P. 35(a).
Moreover, “[t]he filing of a motion under Federal Rule of
Criminal Procedure 35(a) does not suspend the time for filing
a notice of appeal from a judgment of conviction.” FED. R. APP.
P. 4(b)(5).
    All of these provisions were designed to circumscribe the
authority of the district court to modify sentences after
pronouncing them. Before the Sentencing Reform Act, Rule
35(a) broadly authorized district courts to “correct an illegal
sentence at any time” and to “correct a sentence imposed in an
illegal manner within the time provided … for the reduction of
sentence.” 18 U.S.C.A. Fed. R. Crim. P. 35(a), Rule Applicable
to Offenses Committed Prior to Nov. 1, 1987 (West 2014). The
Sentencing Reform Act eliminated that power entirely. See
Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II,
ch. II, § 215(b).
   Even after this change in the law, however, a few courts
held that district judges retained some inherent authority to
correct sentencing errors within the time allowed for filing an
appeal. See, e.g., United States v. Cook, 890 F.2d 672, 675 (4th Cir.
1989). Rule 35 was modified again to curtail that development;
today’s Rule 35(a) allows for some reconsideration of a
sentence, but the authority is very narrowly limited to arith-
metical, technical, or other “clear error” and must be exercised
within the “stringent time requirement” of 14 days. FED. R.
CRIM. P. 35 advisory committee’s note, 1991 amendments. The
No. 13-2677                                                  9

Sentencing Reform Act also imposed the limitation in § 3582(c),
preventing courts from modifying a term of imprisonment
except as provided by Rule 35 or statute. This provision
addressed Congress’s concern that judges were introducing
uncertainty into the sentencing process by exercising their
common-law power to revise sentences. See United States v.
Smith, 438 F.3d 796, 798–99 (7th Cir. 2006) (“One fundamental
change made in 1984 was to provide that, once sentence has
been imposed, neither the judge nor a parole board may make
changes.”).
    The unmistakable effect of these amendments was to
abrogate the district court’s common-law power to revisit a
sentence and to tie any sentence reconsideration to narrowly
drawn textual provisions. Townsend’s argument relies on cases
holding that common-law reconsideration is authorized outside
the sentencing context. We do not question this understanding
of the court’s retained common-law authority, but it simply has
no application here. None of Townsend’s cases suggest that
this principle trumps statutes and rules expressly aimed at
eliminating common-law reconsideration of sentences; indeed,
none of the cases address the Sentencing Reform Act at all. Cf.
United States v. Phillips, 597 F.3d 1190, 1200 (11th Cir. 2010)
(“[T]hese decisions did not involve a motion to correct an
imprisonment sentence and therefore they did not need to
address the unambiguous language in § 3582(c)(1)(B) which
prohibits a district court from modifying an imprisonment
sentence except as ‘expressly permitted by statute or by
Rule 35.’”).
10                                                    No. 13-2677

    Most cases allowing common-law reconsideration motions
address issues related to convictions. See, e.g., United States v.
Ibarra, 502 U.S. 1, 6 (1991) (reconsideration of pretrial motion to
suppress); Rollins, 607 F.3d at 501 (reconsideration of motion
for new trial). Others were decided before the Sentencing
Reform Act took effect and are not helpful here. See, e.g., United
States v. Kalinowski, 890 F.2d 878, 881–82 (7th Cir. 1989) (dealing
with conduct occurring before November 1, 1987, when the Act
took effect). Other cases have rejected the availability of a
common-law motion to reconsider a sentence, albeit without
mentioning the Sentencing Reform Act. E.g., United States v.
Redd, 630 F.3d 649, 650 (7th Cir. 2011) (finding motion for
reconsideration of sentence “ineffectual” as a common-law
motion because it was not timely); see also United States v. Beard,
745 F.3d 288, 291 (7th Cir. 2014) (same). These opinions instead
construed the reconsideration motions as having been filed
under a statutory exception to the § 3582(c) bar, not a common-
law rule. See Redd, 630 F.3d at 650 (“The document therefore
was … a new motion for a lower sentence under § 3582(c)(2).”);
Beard, 745 F.3d at 291 (same).
   Notwithstanding the clear import of the Sentencing Reform
Act, a few unpublished orders from this circuit suggest that a
common-law motion for reconsideration might be available in
the sentencing context. See, e.g., United States v. Murry, 515 F.
App’x 602, 603 (7th Cir. 2013); United States v. Jumah, 431 F.
App’x 494, 496 (7th Cir. 2011). But unpublished decisions are
not binding on subsequent panels. See 7TH CIR. R. 32.1(b)
(“Orders, which are unsigned, … are not published in the
Federal Reporter, and are not treated as precedents.”). More-
over, these decisions lack any sustained discussion about the
No. 13-2677                                                  11

propriety of common-law reconsideration of sentences, and
they fail to explain how a common-law practice could create an
exception to the clear text of § 3582 and Rule 35. Cf. United
States v. Barragan-Mendoza, 174 F.3d 1024, 1028 (9th Cir. 1999)
(“We agree that generally district courts do have ‘inherent
authority’ to decide motions for reconsideration or rehearing
of orders in criminal proceedings, even when there is no
statute authorizing such motions. … The government has not
cited any authority, however, that applies the ‘inherent
authority’ rule when there are express statutory provisions
generally prohibiting motions for reconsideration.”). We
disavow anything in our unpublished decisions suggesting
that district courts retain common-law authority to reconsider
a sentence.
    This case is governed by statutes and the federal rules of
procedure, not any common-law practice. Townsend cites no
statute permitting this sort of reconsideration, so under the
plain text of § 3582(c), the court was authorized to proceed
only within the constraints of Rule 35. And according to
Rule 4(b)(5) of the Rules of Appellate Procedure, proceedings
under Rule 35 do not suspend the time for filing a notice of
appeal. See United States v. Dotz, 455 F.3d 644, 648 (6th Cir.
2006) (holding that motions for reconsideration of a sentence,
“regardless of creative characterization,” do not suspend the
time for filing an appeal because “there is simply no such thing
as a ‘motion to reconsider’ an otherwise final sentence”). Thus,
Townsend’s motion did not affect the time limit for filing a
notice of appeal. Townsend’s notice was eight days late.
Because the government has raised the timeliness issue, this
appeal must be dismissed as untimely.
                                                    DISMISSED.
