United States v. Leonel Gonzalez , 509 F. App'x 356 ( 2013 )

Case: 11-41069 Document: 00512128472 Page: 1 Date Filed: 01/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 29, 2013
No. 11-41069
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LEONEL GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:10-CR-1708-1
Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Leonel Gonzalez pleaded guilty of being a felon in possession of a firearm
and was sentenced on June 15, 2011, to an 87-month term of imprisonment and
to a three-year period of supervised release. On June 21, 2011, the district court
vacated its original sentence because it had made an error in calculating
Gonzalez’s base offense level. Gonzalez was resentenced on September 27, 2011,
to a 120-month term of imprisonment and to a three-year period of supervised
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-41069 Document: 00512128472 Page: 2 Date Filed: 01/29/2013
No. 11-41069
release. Subsequently, judgment was entered. Gonzalez gave notice of his
appeal.
This court must satisfy itself of the district court’s jurisdiction. United
States v. Garcia, 606 F.3d 209, 212 n.5 (5th Cir. 2010). “‘A judgment of
conviction that includes a sentence of imprisonment constitutes a final judgment
and may not be modified by a district court except in limited circumstances.’”
United States v. Caulfield, 634 F.3d 281, 283 (5th Cir. 2011) (quoting Dillon v.
United States, 130 S. Ct. 2683, 2690 (2010); internal quotation marks and
brackets omitted); see also 18 U.S.C. § 3582(b) & (c).
The issue presented is whether the district court had the authority under
§ 3582(c) to modify the term of imprisonment under Rule 35(a) of the Federal
Rules of Criminal Procedure. See § 3582(c)(1)(B). Rule 35(a) provides, “Within
14 days after sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.” FED. R. CRIM. P. 35(a).
The original sentencing occurred on June 15, 2011, when the district court
orally announced the original 87-month sentence. See RULE 35(c). Both parties
agree that the district court lacked jurisdiction to impose the new sentence on
September 27, 2011, because the resentencing occurred after the expiration of
the 14-day period of Rule 35(a). See United States v. Lopez, 26 F.3d 512, 519 &
n.8 (5th Cir. 1994).
Judgment was not entered following imposition of the original sentence.
Because the subsequent resentencing and entry of judgment were outside of the
14-day period of Rule 35(a), they are void. See FED. R. APP. P. 4(b). Thus, there
was no judgment from which Gonzalez could appeal, and this court lacks
jurisdiction. See United States v. Jones, 2012 WL 4903683 at *1 (5th Cir. Oct.
17, 2012) (unpublished). The appeal is DISMISSED.
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