United States v. Fish ( 2022 )

FILED
Appellate Case: 21-7044 Document: 010110628151 Date Filed:
United01/06/2022
States CourtPage: 1
of Appeals
Tenth Circuit
January 6, 2022
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-7044
(D.C. No. 6:20-CR-00021-RAW-1)
BRANDIS NICOLE FISH, (E.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Accordingly,
we order the case submitted without oral argument.
Brandis Nicole Fish filed an 18 U.S.C. § 3582(c)(1)(A) motion for
compassionate release. The district court denied the motion on July 10, 2021.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Appellate Case: 21-7044 Document: 010110628151 Date Filed: 01/06/2022 Page: 2
Thirty days later, on August 9, 2021, Fish filed in the district court a motion to
reconsider the denial of her § 3582(c)(1)(A) motion. After the district court
denied her motion to reconsider, Fish filed the instant appeal. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the order of the
district court denying Fish’s motion for reconsideration.
This court reviews the denial of a motion for reconsideration for abuse of
discretion. 1 United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir.
2004). The Federal Rules of Criminal Procedure do not authorize motions for
reconsideration. United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).
Such motions are proper, however, whether filed by a defendant or the
government. Id. at 1242. Because such motions are not based in the Federal
Rules of Criminal procedure, no rule specifies a time limit within which they
must be brought. Id. Noting the serious problems that would inhere in allowing
an unlimited time period for the filing of such motions, this court has held that
motions for reconsideration in criminal proceedings must be brought within
fourteen days, the outer limit for the filing of a notice of appeal in a criminal
proceeding. Id. at 1241-43; see also United States v. Heath, 846 F. App’x 725,
727-28 (10th Cir. 2021) (unpublished disposition cited solely for its persuasive
1
Fish labeled her motion as a “Rule 60(b) Motion To Reconsider.”
Proceedings under § 3582(c) are, however, criminal in nature. See United States
v. McCalister, 601 F.3d 1086, 1087 (10th Cir. 2010). Thus, the Federal Rules of
Criminal Procedure, not the Federal Rules of Civil Procedure, apply. See id.-2-
Appellate Case: 21-7044 Document: 010110628151 Date Filed: 01/06/2022 Page: 3
value) (applying the rule in Randall to § 3582(c)(1) proceedings). Because Fish
filed her motion for reconsideration far more than fourteen days after the district
court denied her § 3582(c)(1)(A) motion, this court affirms the district court’s
denial for her motion for reconsideration. Randall, 666 F.3d at 1241-43; Heath,
846 F. App’x at 727-28.
For those reasons set out above, the order of the district court denying
Fish’s motion for reconsideration is hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-