United States v. Keifer ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 18 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-3067
v.
(D.C. No. 97-CR-10100)
(Kansas)
ERIC CHRISTOPHER KEIFER, a/k/a
Sheldon Winters,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
Eric C. Keifer pled guilty to bank fraud and using a false social security
number, receiving an adjusted sentence of 22 months and 27 days in prison. On
appeal, we held that the district court improperly considered unproven conduct
that could not be counted as relevant conduct for purposes of the Sentencing
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Guidelines. United States v. Keifer, 198 F.3d 798 (10th Cir. 1999). On remand,
the district court recalculated Mr. Keifer’s sentence, resulting in a sentence of 14
months and 27 days.
In this appeal, Mr. Keifer challenges the district court’s reduction of his
sentence for time served in other states. Incredible as it may seem, Mr. Keifer
argues that he “does not deserve such gracious treatment, based upon his past
criminal history.” Rec., vol. I, doc. 52 at 1. He asks us to hold that the district
court erred in reducing his sentence and to increase his sentence accordingly so
that “he might benefit from the rehabilitative effects of his incarceration.” Id.Simply put, Mr. Keifer wants to spend more time in federal prison.
Mr. Keifer’s counsel filed a brief pursuant to Tenth Circuit Rule 46.4(B)(1)
and Anders v. California, 386 U.S. 738 (1967), and moved for leave to withdraw
as counsel. Anders holds that “if counsel finds his case to be wholly frivolous,
after a conscientious examination of it, he should so advise the court and request
permission to withdraw.” Id. at 744. Counsel must also submit a brief “referring
to anything in the record that might arguably support the appeal.” Id. The
appellant must be furnished with a copy of counsel’s brief and allowed time to
raise “any points that he chooses; the court . . . then proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Id. If the court finds the case frivolous, it may grant counsel’s
-2-
request to withdraw and dismiss the appeal. Id.In his Anders brief, counsel has identified two potential issues in Mr.
Keifer’s case: whether the district court erred in not granting Mr. Keifer’s pro se
motion for reconsideration of his sentence, and in resentencing Mr. Keifer to a
lower sentence. “In reviewing a district court’s application of the Sentencing
Guidelines to the facts, we apply a due deference standard, yet we review de novo
questions of law.” United States v. Shewmaker, 936 F.2d 1124, 1126 (10th Cir.
1991).
We have consistently recognized that “a district court is authorized to
modify a Defendant’s sentence only in specified instances where Congress has
expressly granted the court jurisdiction to do so.” United States v. Blackwell, 81
F.3d 945, 947 (10th Cir. 1996). To date, Congress has granted the district courts
such jurisdiction in only three places: 18 U.S.C. § 3582(c) and Federal Rules of
Criminal Procedure 35 and 36. See id. at 947-48. None of these specific grants of
jurisdiction is applicable to the instant case.
Title 18 allows district courts to modify “a term of imprisonment once it
has been imposed” upon motion of the Director of the Bureau of Prisons, or if the
modification is “expressly permitted by statute or by Rule 35 of the Federal Rules
of Criminal Procedure.” 18 U.S.C. § 3582 (c). The second instance involves
modification of sentence pursuant to a sentencing range subsequently lowered by
-3-
the Sentencing Commission. There is no motion here from the Bureau of Prisons,
Mr. Keifer’s sentencing range has not been lowered, and he cites no other express
statutory provision that governs his case. The district court thus had no authority
under section 3582(c) to consider Mr. Keifer’s motion for reconsideration.
Rule 35 sets forth only three situations in which a district court may alter a
sentence: when it is (a) correcting a sentence on remand; (b) reducing a sentence
for substantial assistance to the government, upon motion of the government; or
(c) correcting a sentence “imposed as a result of arithmetical, technical or other
clear error” within 7 days after the sentence is imposed. Section (a) is
inapplicable because Mr. Keifer does not contend the district court incorrectly
followed our mandate. Section (b) is inapplicable as there is no motion from the
government for substantial assistance. Therefore, Mr. Keifer must rely on (c).
Regardless of whether there was an “arithmetical, technical or other clear error”
in his sentence -- and we think there was not, for reasons discussed below -- Mr.
Keifer filed his motion for reconsideration of his sentence with the district court
14 days after the court resentenced him. Consequently, his motion was untimely.
Rule 36 is inapplicable as well. That rule provides that “[c]lerical mistakes
in judgments, orders or other parts of the record and errors in the record arising
from oversight or omission may be corrected by the court at any time and after
such notice, if any, as the court orders.” Fed.R.Crim.P. 36. In his motion for
-4-
reconsideration, Mr. Keifer contended his sentence was incorrectly calculated
because the court should not have credited him with time served. Therefore, his
motion went to the merits of his sentence. Rule 36 was created to “give the court
authority to correct clerical-type errors, but does not give the court authority to
substantively modify a Defendant’s sentence.” Blackwell, 81 F.3d at 948-49(citations omitted).
The second issue raised by Mr. Keifer’s counsel in his Anders brief is
whether the district court erred in general in its resentencing of Mr. Keifer. This
issue was not properly raised in the district court at the time of sentencing. The
court gave Mr. Keifer four opportunities, during the resentencing conference, to
raise an objection or make a statement regarding his sentence, but he declined to
do so. We will not consider an issue on appeal that was not raised below. Walker
v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).
Tempting as it may be to allow a felon to voluntarily remain in prison for a
longer sentence, ostensibly to seek further rehabilitation, we find Mr. Keifer’s
appeal totally without merit. Applying the standards of Anders, we hold that the
appeal is frivolous. We therefore grant counsel leave to withdraw and DISMISS
the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
-5-