                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4392


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JERMAINE LAVONNE CHASE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Jackson L. Kiser, Senior
District Judge. (7:94-cr-40106-jlk-5)


Submitted:    October 27, 2009             Decided:   November 30, 2009


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant.   Ray Burton Fitzgerald, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Jean Barrett Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Jermaine Chase seeks to appeal the district court’s

grant of his 18 U.S.C. § 3582(c) motion, in which Chase sought a

reduction of his sentence.             The Government has filed a motion to

dismiss the appeal as untimely.                 While we deny the Government’s

motion   to    dismiss,     we    affirm    the     district      court’s      grant    of

Chase’s § 3582(c) motion.

              The    underlying     procedural       history      of    this   case    is

long-standing, and well known to the parties.                      Thus we will not

repeat it here.         Pertinent to the issues presently on appeal are

the following facts.           While an appeal was previously pending in

this   court    from     the     district       court’s   May     24,   2007    Amended

Judgment, entered based on the March 23, 2007 directive of this

court,   the    district       court     entered    an    order    reducing     Chase’s

sentence from 360 to 292 months’ imprisonment on his conviction

pursuant to 21 U.S.C. § 846 (2006), for conspiracy to possess

with the intent to distribute cocaine and cocaine base (“crack”)

(Count 1).          The reduction was made pursuant to U.S. Sentencing

Guidelines Manual §            2D1.1 (2007) (“Amendment 706”).                   As the

prior filing of the notice of appeal divested the district court

of jurisdiction to enter the order, we granted Chase’s motion

for remand to confer jurisdiction upon the district court, and

remanded      the    case   for    the    limited    purpose       of   allowing       the

district court to consider the propriety of resentencing Chase

                                            2
in     accordance       with        the        then        newly-amended        crack     cocaine

sentencing guideline, Amendment 706.                             On December 18, 2008, the

district court reentered an order granting Chase a reduction of

his    sentence        on     Count       1     from       360     months   to     292    months’

imprisonment.

               Chase filed a motion for reconsideration, arguing that

the    292-month        sentence          imposed          by     the   district       court        for

conspiracy to distribute crack cocaine exceeded the 240-month

statutory maximum for that conviction, in violation of Apprendi

v. New Jersey, 530 U.S. 466 (2000).                              The district court denied

the motion on January 27, 2009.                          Chase filed a motion to correct

the order denying his motion for reconsideration, on the ground

that     he    was     not        convicted          of     possession      with       intent       to

distribute      50     grams       or    more        of    cocaine      base.         Following      a

hearing, the district court entered an amended order on March 6,

2009, vacating its January 27, 2009 order, and denying Chase's

motion to reconsider the December 18, 2008 order reducing his

sentence to 292 months pursuant to § 3582(c).                               Citing to United

States    v.    Dunphy,       551       F.3d        247,    254    (4th   Cir.    2009),       cert.

denied, 129 S. Ct. 2401 (2009), and to USSG § 1B1.10(a)(3), the

district       court        reasoned       that          the     sentence   reduction          in    a

§ 3582(c) proceeding is not a full resentencing, and that it was

accordingly limited to considering the effect of the retroactive

amendment      only,        and    not        any    other        sentencing     or    guidelines

                                                     3
issues.     The district court found that Chase’s argument that his

sentence violated Apprendi, is a “new issue outside the scope of

§ 3582(c)       because         it   is     unrelated         to     any    change       in    the

sentencing      guidelines,”              that     Chase’s     Apprendi          argument       had

already been raised in the district court and on appeal, and

that   this     court       explicitly           twice   affirmed       Chase’s      360-month

concurrent      sentence.            On    March      12,    2009,    the       district      court

modified its order without changing the substantive ruling.

              On March 12, 2009, Chase filed the presently-pending

appeal, contending that he is appealing the final order of the

district court entered on March 6, 2009.                               The Government has

filed a motion to dismiss the appeal as untimely, contending

that, while Chase’s notice of appeal designates the district

court’s March 6, 2009 order as the order being appealed, Chase

actually      seeks        to   appeal      the       order    of    December       18,       2008,

granting Chase’s § 3582(c) motion.

              We first address the Government’s motion to dismiss

Chase’s appeal.             A defendant’s notice of appeal in a criminal

case   must     be    filed      within      ten      days    after    the       entry    of   the

judgment or order being appealed.                        Fed. R. App. P. 4(b)(1)(A).

Time   limits        set    forth     in     Rule      4(b)    are     non-jurisdictional.

United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009).

              The district court entered its order granting Chase’s

motion    for    reduction           of    sentence         pursuant       to    § 3582(c)      on

                                                  4
December    18,    2008.       Although      the      Federal       Rules    of   Criminal

Procedure and Federal Rules of Appellate Procedure 4(b) do not

provide for tolling of the ten-day appeal period for the filing

of a motion for reconsideration, we have held that the filing of

such a motion delays the time period for filing the notice of

appeal    until    after     the   motion       has   been     ruled    upon.       United

States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (citing

United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991)).                                 Thus,

because    Chase     filed    a    motion       to    reconsider       and    amend     the

judgment by the January 5, 2009 deadline for filing his notice

of appeal, the time for filing the appeal notice was delayed

until the district court’s issuance of its order denying that

motion on January 27, 2009.            The new deadline for the filing of

Chase’s    notice    of    appeal     from      the    grant    of     his   motion     for

reduction of sentence, then, was February 10, 2009.                          See Fed. R.

App. P. 26.       Rather then filing a notice of appeal, Chase filed

a “Motion to Amend/Correct Order on Motion for Reconsideration”

on   January   28,   2009,     upon    consideration           of    which    motion,    as

noted above, the district court vacated its January 27, 2009

order and denied the motion to reconsider its grant of Chase’s

§ 3582(c) motion.

            In its motion to dismiss, the Government argues that,

while the filing of the first motion for reconsideration tolled

Chase’s appeal period relative to his motion for reduction of

                                            5
sentence, his filing of the second motion to reconsider did not

have       that    same      effect.       It       asserts,         therefore,    that   Chase’s

notice of appeal, ultimately filed on March 12, 2009, the same

day    as     the       entry     of    the     district        court’s        (modified)      order

denying his motion to amend/correct, was ineffectual to give

jurisdiction            to     this     court       to     consider      the    merits    of    the

December          18,    2008     grant    of      Chase’s       motion     for    reduction      of

sentence.

                  The problem with the Government’s analysis is that, in

its order ruling on Chase’s second motion for reconsideration,

the district court expressly vacated its January 27, 2009 order

denying       Chase’s        motion      for       reconsideration.             Thus,    when   the

district          court,     on   March       6,    2009,      denied     Chase’s    motion     for

reconsideration              of   the     grant          of    his     § 3582(c)    motion,      it

effectively restarted the clock for the filing of Chase’s notice

of     appeal           from      the     denial          of     his      first     motion      for

reconsideration.

                  Given this Court’s pronouncement in Urutyan that time

limits for the filing of appeals in criminal cases are non-

jurisdictional, given the unique circumstances present in this

case, *      and        giving        Chase        every       possible     benefit       of    the



       *
       Included in these unique circumstances is the fact that
Chase’s notice of appeal was filed within the thirty-day
(Continued)
                                                     6
construction of the rules regarding the timeliness of appeals,

we find that because Chase’s March 12, 2009 notice of appeal was

timely as to the denial of his motion for reconsideration, as

set   forth    in     the   district    court’s    March      6,    2009     order   (as

modified      on    March   12,   2009),   this   court    has      jurisdiction      to

consider Chase’s appeal.              Therefore, we deny the Government’s

motion   to    dismiss      Chase’s    appeal    from   the    December       18,    2009

grant of his § 3582(c) motion.

              The substance of Chase’s appeal as to the district

court’s grant of his § 3582(c) motion is his argument that even

though   the       district   court    lowered    his   sentence      on     his    crack

cocaine conspiracy conviction two levels pursuant to Amendment

706 to the sentencing guidelines, from 360 months’ imprisonment

to 292 months’ imprisonment, it erred in failing to lower his

sentence to 240 months, which is the statutory maximum for his

conviction.         He asserts that his case is distinguishable from

Dunphy, such that the district court could have resentenced him

when it considered his § 3582(c) motion, because his sentence is

unconstitutional.

              We find no merit to Chase’s claims.                  First, in Dunphy,

we held that proceedings under § 3582(c)(2) do not constitute a



excusable      neglect      period    provided    for   in     Fed.     R.    App.    P.
4(b)(4).



                                           7
full resentencing of the defendant.                        Dunphy, 551 F.3d at 251-53

(rejecting defendant’s argument that United States v. Booker,

543 U.S. 220 (2005), should apply to § 3582 proceeding).                                   There

is    nothing     in     Dunphy      that    limits           this    rule       based    on   the

constitutionality         of       the   original        sentence,         and    the    district

court correctly relied on Dunphy in refusing Chase’s request for

resentencing beyond that prescribed by Amendment 706.

               Second, Chase’s 360-month sentence was not infirm.                               As

noted     by    the     district         court,        this    court       twice     explicitly

affirmed       Chase’s    360-month         concurrent          sentence.           See    United

States v. Chase, 296 F.3d 247, 253 (4th Cir. 2002) (holding that

the     imposition       of    a    single      360-month           term    for     conspiracy,

although erroneous, was harmless); United States v. Chase, 1999

WL    1054140,    at     *2    (4th      Cir.       Nov.      22,    1999)       (No.    98-4665)

(remanding       for     consideration            of     post-offense            rehabilitation

departure, but affirming sentence in all other respects).                                      See

also United States v. White, 238 F.3d 537, 542-43 (4th Cir.

2001).     Hence, this court already has upheld Chase’s 360-month

sentence and will not further entertain his continued claims

that his 360-month sentence violated Apprendi or was otherwise

unconstitutional.

               Third,     when      this    court        remanded      the        case    to   the

district court on December 16, 2008, the remand was expressly

limited to confer jurisdiction to the district court to allow it

                                                8
to consider the propriety of resentencing Chase in accordance

with   Amendment     706.          Therefore,     the     district     court     was

foreclosed by the mandate rule from revisiting the issue of the

legality of Chase’s sentence except as it related to the amended

guidelines.     See United States v. Bell, 5 F.3d 64, 66 (4th Cir.

1993) (stating that the mandate rule “forecloses relitigation of

issues expressly or impliedly decided by the appellate court,”

as well as “issues decided by the district court but foregone on

appeal.”);    see   also    Volvo    Trademark        Holding    Aktiebolaget     v.

Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007).                        Thus, the

district court had no authority in any event to resentence Chase

except pursuant to Amendment 706.

             Hence, we find no error in the district court’s grant

of a two-level reduction in Chase’s sentence based on Amendment

706, and further find that the district court’s grant of Chase’s

§ 3582(c) motion was not an abuse of discretion.                       See United

States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004).                         Chase’s

292-month sentence, as set forth in the district court’s March

12, 2009 order, is affirmed.

           Accordingly,       we     deny   the       Government’s     motion     to

dismiss   Chase’s    appeal   as     untimely,    and     affirm     the    district

court’s grant of Chase’s § 3582(c) motion.                      We dispense with

oral   argument     because   the     facts     and     legal    contentions     are



                                        9
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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