                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 13-3515
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                               ARTHUR D’AMARIO, III,
                                              Appellant
                                  ______________

              APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                     (D.C. Crim. Action No. 06-cr-00112-001)
                     District Judge: Honorable Paul S. Diamond
                                  ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 9, 2014
                                   ______________

           Before: RENDELL, GREENAWAY, JR. and BARRY, Circuit Judges.

                            (Opinion Filed: December 9, 2014)
                                    ______________

                                        OPINION*
                                     ______________

GREENAWAY, JR., Circuit Judge.

       At first blush, this case presents us with potentially thorny questions regarding the


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
interplay of the Federal Rules of Appellate Procedure, the Federal Rules of Criminal

Procedure, the Supreme Court’s pronouncement regarding a matter of federal common

law, and what we can reasonably expect a pro se litigant to understand about these legal

principles. Upon closer examination, these questions evaporate, leaving us with a

straightforward application of the time parameters set forth in Fed. R. App. P. 4. As

explained below, the application of that rule requires the dismissal of this appeal.

       Following a jury trial, Arthur D’Amario was found guilty of threatening the life of

a federal judge. The District Court sentenced D’Amario to a term of eighty-four months

of incarceration, followed by three years of supervised release.

       Upon his release from custody, D’Amario sought to transfer his supervised release

from New Jersey to Rhode Island. Rhode Island refused to accept his supervision. He

appealed the denial of his transfer, and we affirmed. He also sought modification of the

terms of his supervised release, which the District Court denied. We affirmed.

       D’Amario absconded to Canada, without permission and in violation of his

conditions of supervised release. His subsequent arrest in Canada led to a revocation

hearing, resulting in the District Court’s determination that D’Amario violated the terms

of his supervised release. The District Court imposed a sentence of twenty-four months

of incarceration, with no term of supervised release to follow. Seven days later,

D’Amario filed a pro se motion for reconsideration, raising various claims and expressing




                                              2
his belief that filing the motion tolled the time for filing his notice of appeal. 1

       The District Court ordered the government to respond to this motion, which it did.

In its response, the government argued that the only bases to challenge a final criminal

judgment were codified in 18 U.S.C. § 3582(c), and that D’Amario’s motion did not meet

any of the criteria set forth in that section. The government added that “his avenue of

recourse is either a direct appeal or a motion filed pursuant to 28 U.S.C. § 2255.”

(Docket Entry No. 493.) The District Court entered an order converting the motion

seeking reconsideration to a Fed. R. Crim. P. 35 motion and denied it. Four days later,

D’Amario filed a pro se notice of appeal, stating he sought review of the order denying

reconsideration, as well as the order revoking his supervised release.


       1
          D’Amario based his belief that his motion for reconsideration tolled the time for
filing an appeal on our precedent in United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir.
2003) (“As noted by the Second and Ninth Circuits, motions for reconsideration may be
filed in criminal cases.”) (citations omitted). It is correct that motions for reconsideration
may be filed in criminal cases, and that filing a motion for reconsideration tolls the time
for filing a notice of appeal. Gov’t of the Virgin Islands v. Lee, 775 F.2d 514, 519 (3d
Cir. 1985). However, that general principle does not apply to judgments of convictions.
Congress has limited the ability of a district court to reconsider sentencing decisions.
See, e.g., United States v. Townsend, 762 F.3d 641, 645 (7th Cir. 2014) (recognizing that
“reconsideration motions are accepted as a common-law practice” in criminal cases,
“[b]ut Congress long ago abrogated this common-law practice in the sentencing
context.”) Clearly, D’Amario, a pro se litigant, did not understand the difference
between reconsideration allowed by common-law principles and reconsideration
disallowed by statute. As a pro se litigant, we do not hold him to the same standards as
an attorney. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013)
(“[W]e tend to be flexible when applying procedural rules to pro se litigants, especially
when interpreting their pleadings. This means that we are willing to apply the relevant
legal principle even when the complaint has failed to name it.” (internal citation
omitted)). Ultimately, D’Amario’s confusion proves irrelevant to the outcome of this
                                                3
        The government filed a motion to dismiss the appeal as untimely, decision on

which was delayed until after full briefing on the merits. In his counseled merits brief,

D’Amario raises only two arguments — that his appeal is timely and that the conditions

of his original term of supervised release were improper.

        We have long recognized that we should consider the substance, rather than the

title, of claims. Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007) (“We are not

bound by the label attached by a party to characterize a claim and will look beyond the

label to analyze the substance of a claim. To do otherwise would elevate form over

substance and would put a premium on artful labeling. Accordingly, artful labeling will

not confer us with jurisdiction.” (internal citations omitted)).

        In his brief before us, D’Amario argues that “[d]uring the original sentencing, the

court ordered D’Amario to participate in a supervised release program in the District of

New Jersey . . . [and] that the court did not disclose its reasons for requiring D’Amario to

live in New Jersey, much less engage in a meaningful analysis of the factors that pointed

to that state as opposed to other states where D’Amario had roots.” (Appellant’s Br. 13-

14.) As such, the crux of his objections is this condition of his original sentence.

        Given the substance of his arguments, we must construe D’Amario’s appeal as

seeking review of his original judgment of conviction, which imposed this condition of

supervised release (New Jersey rather than Rhode Island). Indeed, he is not posing a



case.
                                              4
challenge to the revocation of his supervised release, despite the reference in his Notice

of Appeal to “the orders entered on August 5, 2013, and May 23, 2013.” (App. 1.) Since

he is seeking review of the District Court’s decision of March 26, 2007, his appeal was

filed over six years beyond the fourteen day deadline set forth in Fed. R. App. P. 4(b).

We will therefore dismiss his appeal as untimely.




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