United States v. David Leigh Knowles ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 15, 2011
No. 09-16048
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-14075-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEIGH KNOWLES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 15, 2011)
Before WILSON and FAY, Circuit Judges, and RESTANI,* Judge.
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
PER CURIAM:
David Lee Knowles appeals the denial of his second motion to compel the
government to file a Rule 35(b) motion to reduce his sentence based on substantial
assistance. See FED. R. CRIM. P. 35(b). In December 2008, Knowles filed his first
pro se motion to compel. The district court construed this motion not as a motion
to compel, but rather as a Rule 35(b) motion, which only the government may
bring. Id. (requiring filing “[u]pon the government’s motion . . . .”). The district
court denied without prejudice Knowles’s December 2008 motion because
criminal defendants may not bring Rule 35(b) motions. Knowles did not appeal
this denial.
In Knowles’s second pro se motion, filed in October 2009, Knowles
requested reconsideration of his December 2008 Motion and attached
documentation indicating that he had an agreement with the government requiring
the government to file a Rule 35(b) motion. The district court construed the
December 2009 motion as a motion to reconsider Knowles’s October 2008
motion, and dismissed it again on the grounds that Knowles could not file a Rule
35(b) motion. Knowles timely appealed this denial.
Motions filed pro se must be construed liberally to afford review on any
“legally justifiable base.” Sanders v. United States, 113 F.3d 184, 187 (11th Cir.
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1997) (per curiam). The district court did not liberally construe the December
2008 and October 2009 motions when it construed them as Rule 35(b) motions,
which Knowles could not legally bring. Liberally understood, these motions are
properly construed as a motion to compel the government to file a Rule 35(b)
motion, and a subsequent motion to compel, which was timely appealed. We
make no determination on the merits of Knowles’s second motion; we simply find
that the district court improperly dismissed it.
We therefore reverse the district court’s denial of Knowles’s December
2009 motion and remand for consideration of Knowles’s second motion to compel
the United States to file a Rule 35(b) motion.
REVERSED AND REMANDED.
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