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 United States Court of Appeals
           FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 15, 2006         Decided November 7, 2006

                        No. 04-3165

                UNITED STATES OF AMERICA,
                        APPELLEE

                             V.

                     RICHARD A. SMITH,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                     (No. 89cr00036-03)


    Jonathan Zucker, appointed by the court, argued the
cause and filed the briefs for appellant.

     Patricia A. Heffernan, Assistant U.S. Attorney, argued
the cause for appellee. With her on the briefs were Kenneth L.
Wainstein, U.S. Attorney, and Roy W. McLeese III, Assistant
U.S. Attorney

   Before: RANDOLPH and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                               2

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     WILLIAMS, Senior Circuit Judge: Rule 48(a) of the
Federal Rules of Criminal Procedure provides that “[t]he
government may, with leave of court, dismiss an indictment,
information, or complaint.” In 2004, the government made a
Rule 48(a) motion to vacate appellant Richard A. Smith’s
fifteen year-old conviction under 18 U.S.C. § 924(c). Smith
did not oppose the motion, which the district court in due
course granted. Letting no good deed go unpunished, Smith
now claims that the district court lacked jurisdiction to grant
the motion—and asks that his conviction be reinstated—on
the theory that Rule 48(a) is inapplicable once a sentence is
final. (We explain below the reasoning that has evidently led
Smith to make this counter-intuitive claim.) Without ruling
on the ultimate scope of Rule 48(a), we hold that the district
court had jurisdiction to entertain the government’s motion
and that Smith’s contemporaneous failure to object to that
motion forfeited his right to do so now.


                            * * *

     In 1989 the district court sentenced Smith to serve several
concurrent life (and shorter) sentences for various drug
distribution offenses, as well as a consecutive thirty-year term
of imprisonment under 18 U.S.C. § 924(c) for the possession
and use of firearms “during and in relation” to those drug
offenses. This court affirmed Smith’s convictions on direct
appeal, accepting the government’s contention that Smith’s
conduct—trading drugs for guns—constituted a violation of
§ 924(c). United States v. Harris, 959 F.2d 246 (D.C. Cir.
1992).
                               3

    Following the Supreme Court’s decision in Bailey v.
United States, 516 U.S. 137 (1995) (concluding that § 924(c)
requires “active employment” of a gun), Smith filed a motion
to vacate his § 924(c) conviction pursuant to 28 U.S.C.
§ 2255. The district court denied the motion and, in 1999, this
court denied Smith’s request for a certificate of appealability.
See In re Smith, 285 F.3d 6, 7 (D.C. Cir. 2002). Despite
Bailey, we treated our Harris decision as controlling in the
§ 2255 context.

     In 2001 Smith asked for authorization to file a successive
§ 2255 motion in order to take advantage of this court’s
decision in United States v. Stewart, 246 F.3d 728 (D.C. Cir.
2001), where we overturned Harris and held that, in light of
Bailey, receipt of a gun during a drug transaction was indeed
not an offense under § 924(c). We denied the requested
authorization. In re Smith, 285 F.3d at 7-9. Although it was
by then clear under circuit law that Smith’s § 924(c)
conviction rested on an erroneous interpretation of the statute,
that error did not meet § 2255’s conditions for filing a second
or successive motion under § 2255, which must invoke
“newly discovered evidence . . . [or] a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255. Smith’s motion met neither
criterion.

    Smith was not without recourse, however. Under the
savings clause of § 2255, we noted, Smith could use 28
U.S.C. § 2241 to collaterally attack his § 924(c) conviction in
the district in which he was confined, which was then the
Southern District of Indiana. Although the Seventh Circuit
had not yet clarified how it would view cases where a
defendant requested guns in payment for drugs, the
government believed that, in light of United States v.
Westmoreland, 122 F.3d 431 (7th Cir. 1997) (holding that
                               4

passively receiving a gun for drugs does not constitute “use”
of a gun in a drug offense), Smith would prevail on his habeas
claim and indeed offered to argue “in support of relief for
[him] in the Seventh Circuit.” In re Smith, 285 F.3d at 9.

     Through no fault of either party, however, Smith was
transferred to the Middle District of Florida (in the Eleventh
Circuit), before he could request relief in the Seventh Circuit.
Under the relevant Eleventh Circuit law as it stood in 2002, it
was far less certain that Smith’s habeas claim would be
successful because that circuit had no precedent similar to the
Seventh Circuit’s Westmoreland decision. Smith filed for a
writ of habeas corpus, but the government opposed the
motion.

    Presumably seeking a practical means of achieving a
result agreeable to both parties, the government returned to
the District of Columbia district court and on October 19,
2004 filed a motion to vacate the § 924(c) conviction pursuant
to Rule 48. Smith did not oppose the motion; three days after
the government filing he requested re-sentencing on his
remaining counts. The district court granted the government’s
motion to vacate, but denied Smith’s motion for re-
sentencing. Smith filed a timely notice of appeal.


                            * * *

    On appeal, Smith presents two arguments. First, he
claims that the district court lacked the power under Rule
48(a) to vacate the § 924(c) conviction. If there were indeed
such a jurisdictional defect, we would have to vacate the
court’s order despite Smith’s failure to oppose the
government’s Rule 48 motion.
                               5

     Smith’s position is puzzling, as the remedy he seeks is the
restoration of his 30-year § 924(c) conviction. At oral
argument counsel explained the method in this apparent
madness: He suggested that reinstatement would permit
Smith to file a new habeas petition in the Eleventh Circuit. If
the court there vacated the § 924(c) conviction, counsel
believed that Smith would have to be resentenced, and on
such resentencing he could obtain the benefit of the rules
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and United States v. Booker, 543 U.S. 220 (2005).

     In addressing Smith’s claims we must distinguish
questions of jurisdiction—whether a case “fall[s] within a
court’s adjudicatory authority,” Kontrick v. Ryan, 540 U.S.
443, 455 (2004)—from questions of the proper exercise of
jurisdiction, here, whether Rule 48 can be used to vacate a
sentence that has become final on appeal. Though objections
to jurisdiction can be neither waived nor forfeited, even an
absolutely inflexible rule on how jurisdiction should be
exercised can “be forfeited if the party asserting the rule waits
too long to raise the point.” Id. at 456.

     A district court’s jurisdiction to entertain Rule 48 motions
lies under 18 U.S.C. § 3231’s general grant of jurisdiction
over “all offenses against the laws of the United States.” This
observation would be unremarkable in the typical situation
where Rule 48 is used to dismiss an indictment, information,
or complaint before or during trial. Cf. Hugi v. United States,
164 F.3d 378, 380 (7th Cir. 1999) (“Subject-matter
jurisdiction in every federal criminal prosecution comes from
18 U.S.C. § 3231 . . . . That’s the beginning and the end of the
‘jurisdictional’ inquiry.”). The question here is simply
whether jurisdiction under § 3231 is available if a Rule 48
motion is made after sentencing and appeal. Though perhaps
not obvious, the answer appears to be yes.
                               6

     The Supreme Court’s recent opinion in Eberhart v.
United States, 126 S. Ct. 403 (2005), is instructive. There the
government responded on the merits to a defendant’s untimely
request for vacatur and a new trial under Rule 33; until appeal,
it neglected the issue of untimeliness. The Supreme Court,
rejecting the Seventh Circuit’s understanding that Rule 33’s
time limits were jurisdictional, held instead that they merely
constituted mandatory “claim-processing” rules, to be applied
rigorously if invoked, but subject to forfeiture if ignored. Id.
at 407.

     Eberhart appears to confirm, albeit without comment,
that district courts retain some reservoir of jurisdiction—
distinct from the rules of criminal procedure themselves—to
entertain motions after final judgment. Though Eberhart did
not state the jurisdictional basis for entertaining untimely Rule
33 motions, this court’s ruling in Bruno v. United States, 180
F.2d 393, 394 (D.C. Cir. 1950), suggests that such motions are
“a part of the original proceeding,” and thus presumably rest
on 18 U.S.C. § 3231. As the Eberhart court invoked no
specific grant of jurisdiction (such as 28 U.S.C. § 2255) to
vacate sentences and retry defendants long after their
sentences became final, we infer that jurisdiction for such
remedies must rest on § 3231.

     If Eberhart confirms both that district courts retain
jurisdiction to vacate final sentences and that “fail[ure] to
raise a defense of untimeliness until after the District Court
ha[s] reached the merits, . . . forfeit[s] that defense, ”
Eberhart, 126 S. Ct. at 407, it remains only to address whether
Eberhart’s understanding of the time limits under Rule 33
should apply with equal force to any implicit time limits on
vacatur under Rule 48 (e.g., precluding exercise of the power
after conviction has become final). We note that Congress
has, in language with a somewhat jurisdictional flavor, limited
district court authority to modify sentences. See 18 U.S.C.
                               7

§ 3582 (stating that a court “may not modify a term of
imprisonment once it has been imposed except” under three
specified circumstances: “upon motion of the Director of the
Bureau of Prisons,” § 3582(c)(1)(A); “to the extent otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure,” § 3582(c)(1)(B); and, in cases
where the applicable sentencing range “has subsequently been
lowered by the Sentencing Commission,” § 3582(c)(2)). But
Eberhart’s holding—that the time limit on Rules 29, 33, 34
and 35 imposed by Rule 45(b)(2) (as it was then worded) is no
more than a claim-processing rule—calls into question a
jurisdictional reading of § 3582. See Eberhart, 126 S. Ct. at
405, 407. Cf. United States v. Smith, 438 F.3d 796, 799 (7th
Cir. 2006) (characterizing § 3582(c) as “a real ‘jurisdictional’
rule rather than a case-processing requirement”).

     Nonetheless, we need not rule today whether § 3582
imposes jurisdictional restraints on the application of Rule 35,
whether those restrictions would apply with equal force to
motions made under different rules, or whether vacating a
sentence even constitutes “modif[ying] a term of
imprisonment” for the purposes of § 3582. Rule 33 explicitly
addresses a court’s ability to “vacate any judgment” and
therefore appears to be the rule most analogous to Rule 48’s
provision for district court dismissal of an indictment.
Smith’s arrival at the same destination would clearly have
been free of jurisdictional error if the government had made
an unopposed motion for retrial under Rule 33, and then
moved to dismiss the new indictment under Rule 48.

     It bears repeating that today we also do not reach the non-
jurisdictional question of whether Rule 48 alone can properly
be used to vacate a final conviction; Smith forfeited his
opportunity to challenge the rule’s appropriate use by failing
to object below. We do observe, however, that both the text
of the rule and its roots in the common law doctrine of nolle
                              8

prosequi cast doubt on Rule 48’s applicability post-
conviction. Two courts have suggested as much. See
Hirabayashi v. United States, 828 F.2d 591, 607 (9th Cir.
1987) (“There is no precedent for applying Rule 48 to vacate a
conviction after the trial and appellate proceedings have
ended.”); Korematsu v. United States, 584 F. Supp. 1406,
1411 (N.D. Cal. 1984) (“The court finds no authority for the
proposition that a Rule 48(a) motion may be made long after
the prosecution has come to rest, the judgment is final,
appeals have been exhausted, judgment imposed and the
sentence served.”). Although the Supreme Court has twice
permitted post-conviction use of the rule while direct appeal
was pending, see Rinaldi v. United States, 434 U.S. 22 (1977)
(per curiam); Watts v. United States, 422 U.S. 1032 (1975), it
has not explained the scope or implications of those decisions.


                            * * *

    Smith offers an alternative, non-jurisdictional theory for
upsetting the district court’s action. He argues that after
vacating the § 924(c) conviction, the court should have
applied the “sentencing package” doctrine and re-sentenced
him on the remaining counts of his conviction. Evidently
Smith’s belief that he might gain from this turns on the theory
mentioned above—that in resentencing the court would be
obliged to apply Apprendi and Booker.

     It is perfectly true that “in some instances, sentences on
multiple counts may comprise a ‘sentencing package,’ so that
attacking the sentence on some counts via § 2255 reopens the
sentence on the other counts as well.” United States v.
Townsend, 178 F.3d 558, 567 (D.C. Cir. 1999) (emphasis
added). This result rests on the interdependence of the
different segments of the sentence, such that removal of the
sentence on one count draws into question the correctness of
                               9

the initial aggregate minus the severed element. We assume
arguendo that the “sentencing package” doctrine can be
implicated by vacatur or modification under any provision,
not just under § 2255. But the necessary package is
conspicuously absent here.

     The classic application of the “sentencing package” idea
involves a sentence in which the sentencing court initially
imposed a consecutive § 924(c) sentence, but withheld any
sentencing enhancement for gun use under § 2D1.1(b)(1) of
the U.S. Sentencing Guidelines because the two provisions are
mutually exclusive. United States v. Morris, 116 F.3d 501,
504 (D.C. Cir. 1997). When Bailey required vacatur of the
§ 924(c) sentence under § 2255, and thus eradication of the
basis for disregarding § 2D1.1(b)(1), we have approved a
resentencing in which the court added time to the non-
§ 924(c) sentence under § 2D1.1(b)(1). Id. Obviously,
mutual exclusivity is an exceptionally strong form of
interdependence. Other circuits have extended the sentencing
package doctrine to allow or require, on vacatur of a § 924(c)
count under § 2255, consideration of the appropriate reduction
for substantial assistance, United States v. Watkins, 147 F.3d
1294 (11th Cir. 1998); of an incorrect calculation of the base
offense level, United States v. Smith, 103 F.3d 531 (7th Cir.
1996); the application of intervening amendments of the
Guidelines, United States v. Easterling, 157 F.3d 1220 (10th
Cir. 1998); and a possible downward departure based on post-
conviction rehabilitation, United States v. Core, 125 F.3d 74
(2d Cir. 1997). The latter two cases involved partial
recalculations favorable to the defendant, but only in a context
where excision of the § 924(c) conviction allowed the
government to call for recalculations adding to the non-§
924(c) elements of the sentence.

    Here the sentencing court calculated a guideline range of
imprisonment on Smith’s six grouped guideline counts and,
                              10

exercising its discretion, sentenced Smith to several
concurrent life terms—the highest sentence available. Only
then, once the package was complete, did the court impose the
consecutive 30-year term under § 924(c). The life sentence on
the grouped counts and the 30-year term for the § 924(c)
violation were in no way interdependent, so the former is not
“unravel[ed]” by vacation of the latter. Townsend, 178 F.3d at
562. The government has understandably not seized upon the
§ 924(c) vacatur to seek additions to the several concurrent
life sentences. Defendant has even more understandably not
sought increases to offset the effect of the § 924(c) vacatur.
The sentencing package doctrine thus affords no apparent
basis for any resentencing on the other counts.

    The judgment of the district court is

                                                Affirmed.
