United States v. Alouis Taylor ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALOUIS LEVORGE TAYLOR, a/k/a Alouise Levorge Taylor,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00331-PMD-1)
Submitted: July 29, 2011 Decided: August 9, 2011
Before KING, GREGORY, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
J. Mitchell Lanier, J. MITCHELL LANIER, PA, Moncks Corner, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Nathan S. Williams, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alouis Levorge Taylor pled guilty to possession with
intent to distribute five grams or more of cocaine base and a
quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006), and using and carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006). The district court initially
sentenced Taylor to a total of 106 months’ imprisonment. The
Government, however, moved to correct the sentence under Fed. R.
Crim. P. 35(a), arguing that the Fair Sentencing Act of 2010
(FSA), Pub. L. No. 111-220, 124 Stat. 2372 (reducing sentencing
disparity between powder cocaine and cocaine base), was not
retroactively applicable and that a variance under 18 U.S.C.
§ 3553(a) (2006) could not be used to implement a sentence below
the statutory mandatory minimum. The district court determined
that it had clearly erred in retroactively applying the FSA and
resentenced Taylor to the pre-FSA statutory mandatory minimums,
totaling 180 months’ imprisonment.
On appeal, counsel contends that the district court
erred in correcting the judgment beyond the fourteen-day period
permitted under Rule 35(a) and that the stated reason for
correcting the sentence was beyond the scope of the rule. We
conclude, and the Government concedes, that the district court
did not have jurisdiction to amend the judgment under Rule
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35(a). See United States v. Shank, 395 F.3d 466, 469-70 (4th
Cir. 2005) (concluding time period in Rule 35(a) is
jurisdictional); United States v. Wisch, 275 F.3d 620, 626 (7th
Cir. 2001) (“[T]he motion must be ruled on by the district court
within [fourteen] days, not simply filed with the clerk of court
during that time.”). Accordingly, we vacate the 180-month
sentence set forth in the amended judgment and remand to the
district court with instructions to impose the sentence
pronounced on September 27, 2010. 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 in the decisional process.
VACATED AND REMANDED
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