United States v. Hawkins ( 2021 )

Case: 20-30207 Document: 00515906954 Page: 1 Date Filed: 06/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 21, 2021
No. 20-30207
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eric Wayne Hawkins,
Defendant—Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CR-194-1
Before Wiener, Southwick and Duncan, Circuit Judges.
Per Curiam:*
In 2004, Eric Wayne Hawkins was convicted after a jury trial of
distribution of cocaine base and hydrocholoride (Count 2 of multi-count
indictment) and distribution of cocaine base (Count 3 of multi-count
indictment), both in violation of 21 U.S.C. § 841(a). He was sentenced as a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30207
career offender to life in prison with respect to Count 2, to a concurrent 360-
month term in prison with respect to Count 3, and to an 8-year term of
supervised release with respect to Count 3. See § 841(b)(1)(A); § 851.
Hawkins later moved for a sentence reduction under the First Step
Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, which makes
retroactive certain sentencing reductions of the Fair Sentencing Act of 2010.
On March 3, 2020, the district court granted that motion, reducing his
sentence of life imprisonment to 360 months and imposing a concurrent 8-
year term of supervised release as to Count 2. Within 14 days of the district
court’s order, which was the period for filing his notice of appeal, Hawkins
mailed both a motion for reconsideration and a notice of appeal. See Fed.
R. App. P. 4(b)(1)(A)(i); see also United States v. Hegwood, 934 F.3d 414, 418
(5th Cir.), cert. denied, 140 S. Ct. 285 (2019); United States v. Alvarez, 210
F.3d 309, 310 (5th Cir. 2000); Spotville v. Cain, 149 F.3d 374, 376–78 (5th
Cir. 1998).
The Federal Public Defender representing Hawkins on appeal has
moved to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Hawkins has responded pro se. Before we may turn to the merits
of the appeal, however, we must examine the basis of our jurisdiction. See
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
A motion to reconsider an order that is filed within the period for
appealing that order, as Hawkins’s was, “render[s] the original judgment
nonfinal for purposes of appeal for as long as the [motion] is pending.”
United States v. Dieter, 429 U.S. 6, 8 (1976) (per curiam); see United States v.
Healy, 376 U.S. 75, 78–79 (1964). Under Rule 4(b)(3), the time for filing a
notice of appeal is postponed by the filing of certain post-judgment motions.
Although not listed among the motions in Rule 4(b)(3)(A), a timely motion
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for reconsideration, as was filed in the instant case, postpones the time for
filing a notice of appeal until the motion is adjudicated. See FED. R. APP.
P. 4(b); United States v. Brewer, 60 F.3d 1142, 1143–44 (5th Cir. 1995).
Hawkins’s notice of appeal is thus ineffective to appeal the district court’s
First Step Act order until the district court rules on the pending motion for
reconsideration. See FED. R. APP. P. 4(b)(3)(B)(i); Burt v. Ware, 14 F.3d
256, 260 (5th Cir. 1994) (interpreting FED. R. APP. P. 4(a)(4)).
Under 28 U.S.C. §§ 1291 and 1292, our jurisdiction extends only to
appeals from final decisions, certain specific types of interlocutory decisions,
and other orders that are properly certified for appeal by the district court.
See United States v. Powell, 468 F.3d 862, 863 (5th Cir. 2006). “[A] motion
for reconsideration in a criminal case filed within the original period in which
an appeal is permitted renders the original judgment nonfinal for purposes of
appeal for as long as the petition is pending.” United States v. Greenwood, 974
F.2d 1449, 1466 (5th Cir. 1992) (quotation marks, brackets, and citation
omitted).
Because the district court has not ruled on Hawkins’s motion for
reconsideration, this case is REMANDED for the limited purpose of ruling
on that motion. The district court is directed to rule on the motion for
reconsideration “as expeditiously as possible, consistent with a just and fair
disposition thereof.” See Burt, 14 F.3d at 261. The motion to withdraw is
CARRIED with the case.
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