                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JAN 12, 2009
                               No. 08-12018                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 95-00010-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

NORRIS WILSON,
a.k.a. Bullhead,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                              (January 12, 2009)

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

PER CURIAM:

     Norris Wilson is a federal prison inmate serving a sentence of 224 months
that was imposed following his conviction on a plea of guilty of conspiracy to

possess with intent to distribute and to distribute crack cocaine, in violation of 21

U.S.C. § 846.1 On August 3, 2007, Wilson moved the district court pursuant to 18

U.S.C. § 3582(c)(2) to reduce his sentence based on Amendment 706 to the

Sentencing Guidelines. The district court, in an order entered on March 31, 2008,

recalculated Wilson’s offense level at 30. At criminal history category V, the

sentence range came to 151 to 188 months’ imprisonment, lower than the 188 to

235 range the court used initially in fashioning Wilson’s sentence. Although it

lowered Wilson’s sentence range, the court denied Wilson’s § 3582(c)(2) motion.

It did so “based on factors identified in 18 U.S.C. § 3553(a), namely the history

and characteristics of the defendant and the need to protect the public from further

crimes of the defendant.”2

       On April 14, 2008, Wilson moved the district court to reconsider its March

31 order. On April 16, while the motion was pending, he filed a notice of appeal,

challenging the March 31order. On June 23, 2008, the court denied the motion for

reconsideration on the ground that Wilson’s filing of the notice of appeal had

       1
          The district court’s probation office, and subsequently the district court, set Wilson’s base
offense level at 32 pursuant to U.S.S.G. § 2D1.1, having found that Wilson’s offense involved at
least 50 grams but less than 150 grams of crack cocaine (53 grams were attributable to Wilson).
There were no adjustments, so the total offense level was 32. This level coupled to a criminal
history category of V yielded a sentence range of 188 to 235 months’ imprisonment.
       2
           The court noted that Wilson had three previous felony drug convictions.

                                                  2
divested the court of jurisdiction to consider the motion on its merits. Wilson now

appeals.

      The filing of a notice of appeal normally divests the district court of

jurisdiction over matters concerned in the appeal and transfers jurisdiction over

those matters to the court of appeals. Shewchun v. United States, 797 F.2d 941,

942 (11th Cir. 1986). The question this appeal presents, therefore, is whether

Wilson’s filing of the motion for reconsideration on April 14 gave the district court

the authority to entertain the motion notwithstanding Wilson’s subsequent filing of

the notice of appeal.

      A defendant in a criminal case must file a notice of appeal within 10 days of

the entry of judgment. Fed.R.App.P. 4(b)(1)(A). However, if a defendant timely

files one of the tolling motions listed under Rule 4(b)(3), then the notice of appeal

is not effective until the date of the entry of the order disposing of the tolling

motion, or until the date of the entry of the judgment of conviction, whichever is

later. Fed.R.App.P. 4(b)(3)(B). The three tolling motions listed in Rule 4(b)(3)(C)

include a motion for judgment of acquittal, a motion for new trial, and a motion for

arrest of judgment. Fed.R.App.P. 4(b)(3)(A). Moreover, “[a] valid notice of

appeal is effective–without amendment–to appeal from an order disposing of any

of the motions referred to in Rule 4(b)(3)(A).” Fed.R.App.P. 4(b)(3)(C).



                                            3
       The Federal Rules of Criminal Procedure do not expressly authorize the

filing of a motion to reconsider an order by the district court. Nonetheless, “the

timely filing of such a motion in a criminal action tolls the time for filing a notice

of appeal and the time begins to run anew following disposition of the motion.”

United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir. 1992) (citing United

States v. Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976)). In this

case, the motion for reconsideration was timely since it was filed within the period

of time allotted for appealing the March 31 order. Vicaria, 963 F.2d at 1414.

Hence, the April 16 notice of appeal did not transfer jurisdiction to this court, i.e.,

it did not oust the district court of jurisdiction, until the district court entered its

June 23 order denying Wilson’s motion for reconsideration.

       The district court’s order of June 23, 2008, denying Wilson’s motion for

reconsideration on the ground that the court lacked jurisdiction to entertain it, is

accordingly vacated, and the case is remanded with the instruction that the district

court pass on the merits of Wilson’s motion for reconsideration.

       VACATED and REMANDED, with instruction.




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