United States v. Sales , 83 F. App'x 512 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4070
AMIR SALES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-02-4-A)
Submitted: September 30, 2003
Decided: December 15, 2003
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher B. Amolsch, LAW OFFICE OF CHRISTOPHER
AMOLSCH, Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Michael J. Elston, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SALES
OPINION
PER CURIAM:
Amir Sales pled guilty to one count of distributing a quantity of
opium in violation of 21 U.S.C. § 841(a) (2000), and was sentenced
to a term of forty-six months’ imprisonment.1 After the ten-day appeal
period had expired, he mailed a pro se motion for reconsideration of
his sentence to the district court. The envelope was postmarked
December 19, 2002, and the motion was filed on December 23, 2002.
Sales challenged the quantity of opium for which he was held
accountable and stated that his attorney’s representation had been
"completely inadequate." The district court denied the motion on
December 30, 2002. On January 10, 2003, with new counsel, Sales
appealed from the order denying his motion for reconsideration of his
sentence.
Because Sales did not file a timely appeal from the judgment order,
we lack jurisdiction to review issues relating to his sentencing. In
criminal cases, a defendant must file his notice of appeal within ten
days of the entry of judgment. Fed. R. App. P. 4(b)(1)(A). With or
without a motion, the district court may grant an extension of time to
file of up to thirty days upon a showing of excusable neglect or good
cause. Fed. R. App. P. 4(b)(4). These time periods are mandatory and
jurisdictional. United States v. Raynor, 939 F.2d 191, 196 (4th Cir.
1991). Judgment was entered in Sales’ case on November 25, 2002.
He did not file a notice of appeal from the judgment and he does not
assert that he informed his attorney that he wished to note an appeal.
A timely motion for reconsideration may extend the time for filing
a notice of appeal, but Sales does not benefit from this principle.
1
Under the terms of his plea agreement, Sales waived the right to
appeal his sentence. However, because the joint appendix does not con-
tain a transcript of the guilty plea colloquy, we are unable to determine
whether the waiver was knowing and voluntary. See United States v.
Wessells, 936 F.2d 165, 168 (4th Cir. 1991) (waiver is ineffective where
district court fails to question defendant about it at Fed. R. Crim. P. 11
hearing). The government mentions the waiver in its brief, but does not
request dismissal of the appeal.
UNITED STATES v. SALES 3
Although "the Federal Rules of Criminal Procedure do not specifi-
cally provide for motions for reconsideration and prescribe the time
in which they must be filed," Nilson Van & Storage Co. v. Marsh, 755
F.2d 362, 364 (4th Cir. 1985), the Supreme Court has held that a
motion for rehearing or reconsideration extends the time for filing a
notice of appeal in a criminal case if the motion is filed before the
order sought to be reconsidered becomes final. See United States v.
Ibarra, 502 U.S. 1, 4 n.2 (1991) (holding that would-be appellants
who file a timely motion for reconsideration from a criminal judg-
ment are entitled to the full time period for noticing the appeal after
the motion to reconsider has been decided).
For Sales’ motion for reconsideration to have been timely filed
under Houston v. Lack, 487 U.S. 266 (1988), he would have had to
deliver it to prison officials for mailing by December 10, 2002, nine
days before the postmark date. See Fed. R. App. P. 26(a) (providing
that "intermediate Saturdays, Sundays, and legal holidays" are
excluded only when time period is less than eleven days). Sales does
not claim to have delivered the motion to prison officials by Decem-
ber 10, 2002. We conclude that Sales has forfeited his right to contest
the district court’s determination at the sentencing hearing of the
quantity of opium attributable to him and his eligibility for the safety
valve reduction.
Sales’ appeal from the order denying his motion for reconsidera-
tion was timely. Under Rule 35(a) of the Federal Rules of Criminal
Procedure, the district court may, within seven days after sentencing,
correct a sentence for arithmetical, technical, or other clear error. Oth-
erwise, the court may not alter a sentence once it is imposed unless
the government files a motion for a substantial assistance departure
under Rule 35(b), the case is remanded for resentencing under 18
U.S.C. § 3742 (2000), or when circumstances not present here permit
sentence modification under 18 U.S.C. § 3582(c) (2000). See United
States v. Fraley, 988 F.2d 4, 67 (4th Cir. 1993) (construing former
Rule 35(c), which has not been substantively amended since).
Because it lacked authority to alter Sales’ sentence, the district court
properly denied his motion for reconsideration.2
2
The government suggests that the motion for reconsideration might be
treated as a motion to vacate under 28 U.S.C. § 2255 (2000). Because
Sales is represented in this appeal and his counsel does not characterize
the motion as a § 2255 motion, we will not consider it a § 2255 motion.
4 UNITED STATES v. SALES
We therefore affirm the district court’s denial of the motion for
reconsideration. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED